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Full text of "International law decisions and notes, 1922"

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NAVAL WAR COLLEGE 



INTERNATIONAL LAW 

DECISIONS AND 

NOTES 



1922 




WASHINGTON 

GOVERNMENT PRINTING OFF'CE 

1924 



ADDITIONAL COPIES 

OF THIS PUBLICATION MAY BE PROCURED FROM 

THE SUPERINTENDENT OF DOCUMENTS 

GOVERNMENT PRINTING OFFICE 

WASHINGTON, D. C. 

AT 

60 CENTS PER COPY 



PREFACE. 



The discussions on international law in 1922 were, as in recent 
years, conducted by George Grafton Wilson, LL. D., professor of 
international law in Harvard University. These discussions par- 
ticularly called to the attention of the officers of the Navy the wide 
departure from earlier precedents which the prize courts of some of 
the belligerents had made during the World War. 

For convenience a few from many cases, mainly from foreign 
courts, have been selected and the decisions are printed in this volume 
as illustrative. 

It is necessary to emphasize the fact that some of these decisions 

were considered too extreme to serve as safe precedents. 

C. S. Williams, 

Rear Admiral, V, S. Navy, 

President, Naval War College. 
December 26, 1922. 

in 



TABLE OF CONTENTS. 1 



Page. 

Berlin, The , 2 

Miramichi, The 9 

Maria, The. 19 

Paklat, The 20 

Simla, The 23 

Southfield, The. 24 

Glitra, The 30 

Dacia, The 37 

Kim, The, and others 50 

Heina, The 108 

Cheref , The 115 

Indian Prince, The 117 

Federico, The 124 

Zamora, The 326 

Comte de Smet de Naeyer, The 150 

Appam, The 153 

Hakan, The 164 

Bonna, The 172 

Stigstad, The 176 

Leonora, The 184 

Diisseldorf, The 195 

1 The cases are arranged in chronological order according to date of decision. 

V 



INTERNATIONAL LAW: DECISIONS AND NOTES. 



Preliminary note. — Very many cases relating to 
maritime warfare were decided by the courts of different 
States during the World War. Some of these cases have 
received consideration at the Naval War College. Not 
all the decisions have been approved as worthy prece- 
dents, but the decisions show the attitude of the courts 
at the time when they were rendered. In spite of the fact 
that some of the decisions of foreign States may not 
accord with the opinions handed down by American 
courts, or with some authorities upon international law, 
these decisions will have weight when similar cases arise. 

The prize cases and related cases of the World War fill 
many volumes. A few only of these cases can be in- 
cluded in this volume. Decisions of the French Conseil 
des Prises have been printed in French. German deci- 
sions have been printed in translation. American and 
British opinions are from the official reports. 

Some of these cases and many others will necessarily 
receive further attention at the Naval War College, 
because, accepted as precedents, changes in interna- 
tional practice will be involved. It is advantageous to 
naval officers to know that the decisions of courts during 
the World War gave evidence of departure from earlier 
precedents somewhat comparable to the changes in the 
conduct of hostilities. 

The cases decided during the earlier period of the World 
War show greater evidence of respect for accepted and 
conventional principles of international law. The strain 
of hostilities seems to have influenced later decisions 
favorably to belligerents. The issuance of retaliatory 
orders led the prize court into new fields wherein the court 
declares itself ill qualified and " Still less would it be 
proper for such a court to inquire into the reasons of 
policy, military or other, which have been the cause and 
are to be the justification for resorting to retaliation for 
that misconduct," page 180. Yet it is maintained that 
" Disregard of a valid measure of retaliation is as against 

1 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 

neutrals just as justiciable in a court of prize as is breach 
of blockade or the carriage of contraband of war," 
page 189. 

The neutrals in the World War were in many cases 
weak or timid and belligerent disregard of neutral rights 
was the natural consequence. This has not been the 
case in wars of the later nineteenth century, and if wars 
subsequently occur it may not then be the case. It 
seems to be evident that the area of war is not limited 
nor its end hastened by meek submission on the part of 
neutrals to disregard of those rights which have been 
obtained after long years of struggle. 



THE "BERLIN." 1 

HIGH COURT OF JUSTICE. 
PROBATE, DIVORCE, AND ADMIRALTY DIVISION. 

ADMIRALTY. 

[In Prize.] 

October 7. 26, 29, 1914. 

[1914] P. 265. 

October 29. Sir Samuel Evans, president. In this 
case the Crown asks for the condemnation of the sailing 
ship, the Berlin, and her cargo as enemy property. No 
claim has been made in respect thereof; but it is, never- 
theless, necessary to investigate the facts, and particu- 
larly to ascertain whether by international law the ship 
is immune from capture as a fishing vessel, 
jstatementofthe The Berlin, as appeared from the ship's papers, was a 
German fishing cutter of 110 metric tons, built in 1892, 
and manned by a crew of 15 hands. She belonged to the 
port of Emden, and was owned by the Emden Herring 
Fishing Co. She had on board 350 empty barrels, 100 
barrels of salt, 50 barrels of cured herrings, and ship's 
stores in 15 barrels. She carried one boat and had two 
drifts of nets, consisting of 42 and 43 nets each drift, 
2 bush ropes, and a small steam boiler and capstan. The 
vessel, as appeared from her log, had been on a fishing 

1 Note as to sources of decisions.— The single American decision, the Appam, involving 
American, British, and German rights, is from the Supreme Court Reports of the United 
States. The British decisions are from different sources as indicated in each case. The 
French decisions are from the Decisions du Conseil des Prises. The German decisions 
are translated from the Entscheidungen des Oberprisengerichlsin Berlin. 

The decisions are arranged in chronological order as in the volume published by the 
Naval War College in 1904, Recent Supreme Court Decisions and Other Opinions and 
Precedents. 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 



voyage in the North Sea for a considerable time. From 
July 27 onward she had been catching herrings, fishing 
in latitudes between 55° and 58° 30' N., and in longi- 
tudes between 1° E. or W., and in depths of from 66 to 
148 meters. Her position on August 1-2, as given in 
her log, was latitude 55° 35' and longitude 0° 32', and 
on August 4-5, latitude 58° 28' and longitude 0° 33'. 
She was at these times, therefore, far out in the North 
Sea, at distances 100 miles, more or less, from the near- 
est coast, namely, Great Britain, and 500 miles, more or 
less, from her home port, and from the German coast. 
She was brought into the port of Wick in the early morn- 
ing of August 6 by the steamship Ailsa, and given into 
the possession of the chief officer of customs, who detained 
her as prize captured at sea. 

There was no direct evidence in the legal sense, as Ca P ture - 
used in our municipal courts of law, of her capture by 
one of His Majesty's ships or of the place or time of her 
capture. It was reported to the officer of the Ailsa that 
she had been captured by H. M. S. Princess Royal, and 
by him that she was handed over by the commander to 
the Ailsa to be taken into Wick Harbor. I saw a confi- 
dential report made in the course of his official duty by 
the commander of H. M. S. Princess Royal of the cap- 
ture, and it appeared that the exigencies of war rendered 
it necessary for him to request the Ailsa to take the cap- 
tured vessel to Wick Harbor on his behalf. It appeared 
also that the capture took place at 11.30 a. m. on Aug- 
ust 5. I should, apart from this, have presumed that 
the capture was not made until after war was declared 
on August 4 (11 p. m.). When the capture took place 
the vessel was in the North Sea in the position which I 
have approximately stated. 

It would have been advisable, inasmuch as His Majesty's 
ship was unable to take the captured vessel to port, or 
to put a prize crew on board for the purpose, for the 
commander of the Princess Royal to enter the time and 
place of capture in the vessel's log, or to make a declara- 
tion in the presence of the vessel's master, lest objection 
might be made of the absence of direct legal evidence. 
But fortunately, in this court, I am entitled to act upon 
other evidence or reliable information, and to draw 
inferences therefrom, upon which the court may think it 
safe and just to act. Eminent judges (among them Lord 
Russell of Killowen) have commented upon the strict 



Evidence. 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 

technicalities of some of the rules of evidence in our courts 
of law; and admirable and wholesome as they are in the 
main, it would appear that some of them tend to shut 
out facts which might with advantage to the course of 
justice be made known to the court. However this may 
be, the prize court is not bound by such confining fetters 
as our municipal courts. Upon this subject Doctor 
Lushington laid down the practice as follows : 

"With regard to the evidence to be produced in the 
Admiralty courts with respect to blockades, and, indeed, I 
may say all other questions of prize, I believe the practice 
to have been, not to entertain objections to the admissi- 
bility of the evidence offered, but to receive all that might 
be tendered; and certainly we have in this case the license 
of evidence of every kind and description which could well 
be offered to the consideration of the court. 

"I apprehend that this, so far as I know, the universal 
practice of the court, was adopted for several reasons. 
First, because the prize court being, not a municipal 
court but a court for the administration of public law, 
was not restrained, with regard to evidence, by those 
rules which are applicable to questions of municipal law. 

"Secondly, it would be most difficult, even if possible, 
to have laid down any rules of evidence, because this 
court, having to concern itself with the transactions of 
various nations, could never construct a code in con- 
formity with all their various rules, and consequently 
injustice might be done by excluding, in transactions in 
which they were interested, proofs recognized by them- 
selves. 

"Thirdly, because of the extreme difficulty of procur- 
ing what we are accustomed to call the best evidence, 
when such evidence is to be obtained from distant 
countries. 

"Fourthly, because, though the court may receive all, 
it will form its own judgment, according to the circum- 
stances of the case, of the weight to be attributed to each 
species of evidence, and is not supposed to be liable to the 
error of giving undue importance to any evidence merely 
because it does not exclude it": The Franciska. 2 

I have stated the conclusions of fact to which I have 
come in the present case. 

» (1855) Spinks 287; 2 Eng. P. C 346. 



INTERNATIONAL LAW! DECISIONS AND NOTES. 5 

The question now remains whether this vessel, the 
Berlin, is immune from capture as a coast fishing vessel. 

The history of the varying practices in this and other fis ££^S s . ° f 
countries of exempting from capture in war vessels 
engaged in coast fishing up to the year 1899 has been 
given in the Supreme Court of the United States of 
America in the case of the Paquete Habana and the Lola. 3 
The judgment of the court was delivered by Gray, J. It 
is full of research, learning, and historical interest. 

As such an elaborate and complete resume is available 
in that judgment, it would be a work of supererogation 
for me to attempt to perform a similar task. 

The conclusions stated by Gray, J., and which form 

the judgment of the majority of the Supreme Court, were 

as follows: 

"This review of the precedents and authorities on the 

subject appears to us abundantly to demonstrate that at 
the present day, by the general consent of the civilized 
nations of the world, and independently of any express 
treaty or other public act, it is an established rule of 
international law, founded on considerations of humanity 
to a poor and industrious order of men, and of the mutual 
convenience of belligerent States, that coast fishing ves- 
sels, with their implements and supplies, cargoes and 
crews, unarmed, and honestly pursuing their peaceful 
calling of catching and bringing in fresh fish, are exempt 
from capture as prize of war. The exemption, of course, 
does not apply to coast fishermen or their vessels if em- 
ployed for a warlike purpose, or in such a way as to give 
aid or information to the enemy; nor when military or 
naval operations create a necessity to which all private 
interests must give way. Nor has the exemption been 
extended to ships or vessels employed on the high seas in 
taking whales or seals, or cod, or other fish which are not 
brought fresh to market, but are salted or otherwise 
cured and made a regular article of commerce. This 
rule of international law is one which prize courts, admin- 
istering the law of nations, are bound to take judicial 
notice of, and to give effect to, in the absence of any 
treaty or other public act of their own Government in 
relation to the matter/' 

Since the date when that judgment was pronounced la $JP5 nese regu " 
the matter has been dealt with by Japan in its prize regu- 

175 U.S. 677. 



sions. 



6 INTERNATIONAL LAW : DECISIONS AND NOTES. 

lations, and in some of its prize court decisions, and it 
forms also the subject of an article in one of The Hague 
conventions of 1907. 

Article 35 of the Japanese regulations governing cap- 
tures at sea, which came into force on March 15, 1904, 
provides as follows: 

"All enemy vessels shall be captured. Vessels be- 
longing to one of the following categories, however, shall 
be exempted from capture if it is clear that they are 
employed solely for the industry or undertaking for 
which they are intended: 

" (1) Vessels employed for coast fishery. 

" (2) Vessels making voyages for scientific, philan- 
thropic, or religious purposes. 

" (3) Lighthouse vessels and tenders. 

" (4) Vessels employed for exchange of prisoners." 

In the case of the Michael, 4 ' heard in the Japanese Prize 
Court in 1905, which related to what was alleged to be a 
deep-sea fishing vessel, it was claimed that — 
Japanese deci- "The vessel, though a deep-sea fishing vessel, was not 
engaged in traffic forbidden in time of war, nor was she 
carrying contraband of war, and consequently being 
harmless should be released, in accordance with the in- 
tention which underlies the exemption from capture of 
small coastal fishing boats." Upon this the decision of 
the court ran as follows: "The claimants also argued 
that the vessel should be released in accordance with the 
intention underlying the exemption from capture of 
small coastal fishing boats ; but the usage of international 
law by which small coastal fishing boats are not captured 
arises mainly from the desire not to inflict distress upon 
poor people who are not connected with the war, and the 
principle can not be extended to a vessel like the Michael, 
which was the property of a company and engaged in 
deep-sea fishing." 

The point was not raised in the higher prize (appeal) 
court. Similarly, in the case of the Alexander, 5 the 
same court pronounced as follows: 

"It is also argued by the claimants that the vessel 
should be released in accordance with the intention 
underlying the exemption from capture of small coastal 
fishing vessels, but the usage of international law by 

4 Russian and Japanese Prize Cases (1913), vol. 2, p. 80. 

5 Russian and Japanese Prize Cases, vol. 2, p. 86. 



INTERNATIONAL, LAW! DECISIONS AND NOTES. 7 

which small coastal fishing vessels are not captured 
arises mainly from the desire not to inflict distress on 
poor people who are not connected with the war, and 
clearly can not be extended to a vessel like the Alexander, 
the property of a company, and, moreover, engaged in 
deep-sea fishing." 

Upon appeal one of the grounds of appeal was: 

" Again, the reasoning in the decision appealed from, 
that as the exemption from capture of small coastal 
fishing vessels chiefly arose from a desire not to inflict 
distress upon poor people unconnected with the war, it 
could not therefore be extended to a vessel like the 
Alexander, which was engaged in deep-sea fishing, shows 
that the claimants' point had not been understood. 
What the claimants desired was that the imperial prize 
court should, in the light of recent developments in 
international law, not adhere to old usages, but create 
new precedents." 

Upon which the court adjudged in somewhat quaint 
fashion as follows: 

"The appellants also desired that a new precedent 
should be established in the light of recent developments 
of international law by the exemption from capture of a 
vessel which, as in the present case, was engaged in deep- 
sea fishing. * * * The appellants' request that a 
new precedent should be created by the exemption from 
capture of a deep-sea fishing vessel is nothing more than 
the simple expression of their hopes, and this ground 
of the appeal is therefore also devoid of substance." 

I do not propose to make any pronouncement in the t i<S a Tx. Coaven " 
case now before the court as to whether the German 
Empire or its citizens have in the circumstances of this 
war the right to claim the benefit of The Hague conven- 
tion. But in order to show how the doctrine with which 
I am now dealing has been treated by the nations with 
the progress of years and events, I refer to article 3 of 
The Hague convention, XI, 1907, which is as follows: 

"Vessels employed exclusively in coast fisheries, or 
small boats employed in local trade, are exempt from 
capture, together with their appliances, rigging, and cargo. 
This exemption ceases as soon as they take any part 
whatever in hostilities. The contracting powers bind 
themselves not to take advantage of the harmless char- 
acter of the said vessels in order to use them for military 
purposes while preserving their peaceful appearance." 



K INTERNATIONAL LAW : DECISIONS AND NOTES. 

In this country I do not think any decided and reported 
case has treated the immunity of such vessels as a part 
or rule of the law of nations : vide the Young Jacob and 
Johanna 6 and the Liesbet van den Toll. 7 

Britishdoctrine. But after the lapge of ft century) T am f opinion that 

it has become a sufficiently settled doctrine and practice 
of the law of nations that fishing vessels plying their in- 
dustry near or about the coast (not necessarily in ter- 
ritorial waters), in and by which the hardy people who 
man them gain their livelihood, are not properly subjects 
of capture in war so long as they confine themselves to 
the peaceful work which the industry properly involves. 

The foundation of the doctrine is stated by Hall 8 as 
follows : 

"It is indisputable that coasting fishery is the sole 
means of livelihood of a very large number of families as 
inoffensive as cultivators of the soil or mechanics, and 
that the seizure of boats, while inflicting extreme hard- 
ships on their owners, is as a measure of general appli- 
cation wholly ineffective against the hostile State." 

The rule is formulated by Westlake (International Law, 
Part II, War, p. 133) in these terms: 

" Coast fisheries : Immunity from capture on the ground 
of their being enemies or enemy property, but not from 
capture and condemnation on the ground of breach of 
blockade, is enjoyed by the men, boats, and tackle em- 
ployed in coast fisheries, and their cargoes of fresh fish, 
including fish kept alive by contrivances on their way to 
market; so long as the men and boats are not engaged 
in any warlike employment — in which scouting, exchang- 
ing signals with the forces on their side, and carrying 
arms would be included — so long also as, in the opinion 
of the hostile Government or its naval commanders 
concerned, they are not likely to be engaged in any war- 
like employment" — and he adds: "If the opinion here 
referred to is only that of the naval commanders con- 
cerned, the prize court before which the captures are 
brought will have to release them unless the warlike 
intention of the captured is proved to its satisfaction; 
but if the captures were made in pursuance of a Govern- 
ment order, the prize court, in the absence of anything 
to the contrary in the constitution of the country, will 

8 1 C Rob. 20. » (1804) 5 C Rob. 283. » International Law (6th ed.), p. 446. 



INTERNATIONAL LAW I DECISIONS AND NOTES. 

be bound by such an order as emanating from the 
authority under which it sits." 

It is obvious that in the process of naval warfare in the 
present day such vessels may without difficulty and with 
great secrecy be used in various ways to help the enemy. 
If they are, their immunity would disappear; and it 
would be open to the naval authorities under the Crown 
to exclude from such immunity all similar vessels if there 
was reason for believing that some of them were utilized 
for aiding the enemy. And this seems to be the sense in 
which the second paragraph of article 3 of The Hague 
convention referred to should be regarded. 

As to the Berlin, I am of opinion that she is not within Decision - 
the category of coast fishing vessels entitled to freedom 
from capture; on the contrary, I hold that, by reason 
of her size, equipment, and voyage, she was a deep-sea 
fishing vessel engaged in a commercial enterprise which 
formed part of the trade of the enemy country, and, as 
such, could be and was properly captured as prize of war. 

I therefore decree the condemnation of the vessel and 
cargo, and order the sale thereof. 



THE "MIRAMICHI." 

HIGH COURT OF JUSTICE. 
PROBATE, DIVORCE, AND ADMIRALTY DIVISION. 

ADMIRALTY. 
[In Prize.] 
November 23, 1914. 

[1914] P. 71. 

The subject matter of the claim in this case is a part statement of the 
cargo of 16,000 bushels of wheat carried on the steamship 
Miramichi, which was seized or captured as enemy 
property on September 1, 1914, in the circumstances 
hereinafter mentioned. 

The steamship Miramichi was a British ship. The 
cargo of wheat to which the claim relates was shipped 
at Galveston, Tex., and was stowed, with other wheat, 
in holds 1, 4, and 6 of the vessel. It was shipped in the 
month of July, 1914, before the commencement of the 
war, and without any anticipation of war. It was 
destined for the port of Rotterdam, and was intended to 



10 INTERNATIONAL, LAW I DECISIONS AND NOTES. 

be delivered, as to part, to George Fries & Co., of Colmar, 
as purchasers of 8,000 bushels, and, as to the other part, 
to Gebrueder Zimmern & Co., of Mannheim, as pur- 
chasers of 8,000 bushels. Both these firms were German 
firms, and at the time of seizure or capture of the cargo 
were enemy subjects. 

The two transactions were separate; but there is no 
distinction in substance, or from the legal aspect, be- 
tween the two. It will therefore be sufficient to deal in 
this judgment with one of the cases; and I will take the 
first, namely, the case of the sale by Messrs. Muir & Co. 
to Fries & Co. 

The cargo of wheat destined for Fries & Co. was, as 
I have said, laden on board the British steamship 
Miramichi. On her voyage toward Rotterdam, her 
owners by telegraph directed the vessel to proceed to 
Queenstown for orders by reason of the outbreak of war. 
At Queenstown the owners communicated with the 
British Admiralty and asked their instructions as to 
whether the steamship could proceed to Rotterdam, as 
the cargo was destined for German merchants. Per- 
mission to proceed to Rotterdam was refused, and 
accordingly the vessel proceeded to the port of Eastham, 
in the Manchester Ship Canal, as the best port for the 
disposal of the cargo. 

A question might have arisen as to whether the cargo 
was captured at sea or seized in port. But that makes 
no material difference in this case, and it is agreed that 
the cargo was seized in the port of Eastham. 

The seizure was on September 1, 1914. The Crown 
claims the cargo as prize or as droits of admiralty. The 
claimants, on the other hand, contend that the cargo 
was not subject to seizure as it did not belong to enemy 
subjects, but to themselves as neutrals, being citizens of 
the United States of America. 

November 23. Sir Samuel Evans, president. [After 
stating the facts already set out the learned president 
continued:] The contest between the Crown and the 
claimants may be shortly stated as follows: 

The contention of the attorney general for the Crown 
was that the cargo at the time of seizure was at the risk 
of subjects of the German Empire, then at war, as pur- 
chasers, and therefore was subject to seizure on behalf of 
the Crown. The contention of the claimants, on the con- 



INTERNATIONAL LAW : DECISIONS AND NOTES. 11 

trary, was that the cargo was their property, and there- 
fore could not be lawfully seized. 

The facts as to the contract for sale and purchase of the ^^^ sale 
cargo must now be stated in substance, but briefly. 

I will premise that the contract, and all material trans- 
actions in relation to it up to the time of seizure of the 
cargo, were entered into before the war and in entire inno- 
cence of any anticipation of war. In short, all the trans- 
actions so far as concerned the claimants were carried out 
in times and conditions of peace. The claimants were 
the sellers of the goods, and their bankers who discounted 
the bill of exchange. They have made common cause, 
and no distinction need be made between them in this 
judgment. I will describe the claimants, Messrs. Muir & 
Co., as "the sellers," and Fries & Co., the German mer- 
chants, as "the buyers." 

The sellers contracted to sell the cargo to the buyers on 
June 25 for shipment during the month of July, 1914, 
from a port of the United States of America direct or indi- 
rect to Rotterdam at a price to include cost, freight, and 
insurance; in other words, the contract was what is so 
well known as a c. i. f . contract. Payment (or in the 
American terminology "reimbursement") was to be "by 
check against documents." The sellers were to furnish 
policies of insurance, or certificates of insurance (free of 
war risk) . A clause for settlement of disputes in London 
was included, which shows (apart from anything else) 
that any disputes were to be determined according to 
English law. 

The sellers had bought the wheat to enable them to 
fulfill their contract with the buyers from C. B. Fox, a 
grain merchant in Galveston. 

The wheat was shipped by Fox at Galveston on July 
23, 1914. The bill of lading was given in favor of Fox, 
the shipper, and was made out unto the order of one 
Davis, or to his or their assigns. It was indorsed gener- 
ally, and in due course the sellers paid Fox for the wheat 
and obtained the bill of lading. They did not indorse it 
in favor of the buyers, and it remained a bill of lading only 
indorsed generally. 

The necessary insurances were effected and the certifi- 
cates of insurance were obtained by the sellers on July 23. 

On July 28 the sellers drew a bill of exchange upon the 
buyers and, according to the statement of the attorney 
59650—24 2 



12 INTERNATIONAL LAW : DECISIONS AND NOTES. 

general, discounted it with the hankers (the Guaranty 
Trust Co. of New York, who have joined them as claim- 
ants). On the same date they deposited with the bank- 
ers the bill of lading and certificates of insurance to be 
delivered upon payment by the buyers through a Berlin 
bank of the amount due on the bill of exchange for the 
cost and insurance, less the freight, which was credited, 
as it was to be paid for by the buyers on delivery. 

On the same date also the original documents were for- 
warded to the Berlin bank for credit of the New York 
bank by the steamship Savoie, which sailed from New 
York on July 29 and arrived at Le Havre on August 5; 
and duplicate documents were forwarded by the steam- 
ship Carmania, which sailed from New York on July 29 
and arrived at Liverpool on August 7. The buyers were 
duly notified of these matters, and an invoice was for- 
warded to them by the sellers on the same day (July 28) 
with all the necessary particulars of the shipment, bill 
of exchange, and documents. 

So far as the buyers are concerned, no further informa- 
tion was given to the court except that the documents 
were tendered to them, and that on the tender they re- 
fused to accept the documents, or to pay the sum due 
under the bill of exchange and indorsed on the bill of 
lading as follows: " Refused on account of late production, 
nearly one month after normal due date. Colmar, Sep- 
tember 3, 1914. Geo. Fries." 

That reason was a mere excuse; the real reason, no 
doubt, was that war had broken out. The sellers, 
therefore, or their bankers, still hold the bill of lading, 
and the bill of exchange remains unpaid. 

These, I think, are all the material facts, 
capture. The question of law, as I have stated, is, Was the cargo 

on September 1 subject to seizure or capture by or on 
behalf of the Crown as droits of admiralty or prize ? 

Before this question is dealt with, I desire to point out, 
and to emphasize, that nothing which I shall say in this 
case is applicable to capture or seizure at sea or in port 
of any property dealt with during the war, or in antici- 
pation of the war. Questions relating to such property 
are on an entirely different footing from those relating 
to transactions initiated during the happier times of 
peace. The former are determined largely or mainly 
upon considerations of the rights of belligerents and of 
attempts to defeat such rights. I will refrain from dis- 



INTERNATIONAL LAW : DECISIONS AND NOTES. 13 

cussing these matters, and will only refer to such authori- 
ties as the Sally, 9 heard on appeal by the Lords Commis- 
sioners of Appeals in prize in 1795, the Packet de Bilbao, 10 
and the Ariel, 11 for the principles applicable in the prize 

court during a state of war. 

In the case now before the court, there is no place for 

any idea of an attempt to defeat the rights of this country 
as a belligerent; and the case has to be determined in 
accordance with the principles by which rights of prop- 
erty are ascertained by our law in time of peace. 

The main contest was as to the right test to apply 
in these circumstances for determining whether a par- 
ticular property was subject to seizure or capture. 
Another point was taken and argued, chiefly by junior 
counsel for the claimants, that in any event enemy 
property in a British ship could not.be seized in port or 
captured at sea. 

I will state the contention and propositions submitted 
by the learned attorney general in his own words. 

He said, "My first proposition is that the test of the 
right to capture and sale is the answer to the question 
on whom is the risk at the moment of capture ? That 
is to say, Who suffers if the goods are captured ? Applying 
that test, the American claimants here would have had 
a 'jus disponendi' because they are holding the bill of 
lading, which has not been indorsed, and therefore they 
would have to that extent of course a special properly, 
a property interest in the cargo, but they would not 
have a general property in the cargo; still less would they 
have the risk; and there is a third proposition, which is 
really a development of the other proposition, namely, 
the American sellers had a vested right of payment, 
whatever happened to the goods on the tender of the 
documents; and I will add as a point for my third propo- 
sition that for the purpose of determining whether the 
cargo is good prize (which is quite a separate question 
from the other), the material question is not the abstract 
question of property, but whether it is an enemy or a 
neutral who will suffer if the cargo is condemned — on 
whom is the risk?" And summing it up the learned 
attorney general later submitted, "If my main propo- 
sition is right, in a prize court one is not concerned with 

9 (1795) 3 C. Rob. 300, note. "> (1799) 2 C. Rob. 133. " (1857) 11 Moo. P. C. 119. 



Risk. 



Jus disponendi. 



14 INTERNATIONAL LAW I DECISIONS AND NOTES. 

these niceties about the abstract law of property; but 
the point really is, at the moment of capture, the goods 
being on the high seas, is it or not open to the consignor 
to compel payment by the consignee ? That is the real 
test. Then plainly I am entitled here to the condemna- 
tion of the goods." 

As I have intimated, it was subsequently assumed, and 
for this purpose agreed by the attorney general, that the 
goods were seized when afloat in port; but that makes no 
material difference. 

ow^r?hip ncial The contrar y contention of Mr. Leslie Scott for the 
claimants was that "the true criterion to apply where 
goods are shipped before war is, Whose goods are they? 
In whom is the property — in the sense of a beneficial 
ownership of the goods — vested?" 

Very difficult questions often arise at law as to when 
the property in goods carried by sea is transferred, or 
vests; and at whose risk goods are at a particular time, 
or who suffers by their loss. 

These are the kind of questions which are often brushed 
aside in the prize court when the transactions in which 
they are involved take place during war or were em- 
barked in when war was imminent or anticipated. 

But where, as in the present case, all the material 
parts of the business transaction took place bona fide 
during peace, and it becomes necessary to decide ques- 
tions of property, I hold that the law to be applied is the 
ordinary municipal law governing contracts for the sale 
and purchase of goods. 
P eace ansfer in Where goods are contracted to be sold and are shipped 
during peace without any anticipation of imminent war, 
and are seized or captured afloat after war has super- 
vened, the cardinal principle is, in my opinion, that they 
are not subject to seizure or capture unless under the 
contract the property in the goods has by that time 
passed to the enemy. 

It may be that the element of risk may legitimately 
enter into the consideration of the question whether the 
property has passed or has become transferred. But the 
incidence of risk or loss is not by any means the deter- 
mining factor of property or ownership. (Cf. s. 20 of the 
sale of goods act, 1893.) The main determining factor is 
whether according to the intention of seller and buyer 
the property had passed. 



INTERNATIONAL LAW I DECISIONS AND NOTES. 15 

The question which governs this case, therefore, is, 
whose property were the goods at the time of seizure ? 

This principle is consonant with good sense, and with 
the notion of what is right in commercial dealings. It is 
also in accordance with the doctrines adopted by the 
eminent jurists who have become authorities on the law 
of nations, and applied in the decisions of our prize 
courts (see e. g., The Cousine Marianne, 12 The Ida, 13 The 
Abo, 14 ' The Vroiv Margaretha, 1 * and The Ariel. 16 

The learned attorney general by the tenor of his argu- 
ment rendered it almost unnecessary for me to go through 
the many authorities dealing with the vesting or transfer 
of property under such a contract, or to discuss the ques- 
tion whether the property in this case had, on Septem- 
ber 1, passed from the sellers and become vested in the 
buyers. 

He did not, as I understood, argue that the property 
had passed to the enemy buyers. He admitted that the 
neutral sellers had a jus disponendi, because they held 
the bill of lading, which was not indorsed; although pos- 
sibly he may have intended to qualify this admission by 
saying that "Therefore the sellers would have, to that 
extent, a special property" in the goods. 

But at any rate, as he did not contend that by law the 
property had passed to the buyers, I think it sufficient to 
deal very briefly with the matter, and to state my con- 
clusions without elaborating the grounds. 

In my opinion the result of the many decisions from 
Wait v. Baker 17 up to Ogg v. Shuter, 18 Mirabita v. Otto- 
man Bank, 19 and thence up to the sale of goods act, 1893, 
and of the provisions of the sale of goods act, 1893, itself, 
following closely on these matters the judgment of Cot- 
ton L. J., in Mirabita v. Ottoman Bank 19 (3); and of the 
decisions subsequent to the act, e. g., Dupont v. British 
South Africa Co., 20 Ryan v. Ridley, 21 and Biddell v. E. 
Clemens Horst 22 , is that, in the circumstances of the pres- 
ent case, the goods had not at the time of seizure passed 
to the buyers; but that the sellers had reserved a right 

12 (1810) Edw. 346. 
is (1854) Spinks, 26. 
n (1854) Spinks, 42. 

15 (1799) 1 C. Rob. 336. 

1 6 11 Moo. P. C 119. 

1 7 (1848) 2 Ex. 1. 
18(1875) 1C. P. D. 47. 
l » (1878) 3 Ex. D. 164. 

20 (1901) 18 Times L. R. 24. 

2i (1902) 8 Com. Cas. 105. 

a [1911] 1 K. B. 214, 934; [1912] A. C 18. 



16 INTERNATIONAL LAW : DECISIONS AND NOTES. 

of disposal or a jus disponendi over them, and that the 
goods still remained their property, and would so remain 
until the shipping documents had been tendered to and 
taken over by the buyers, and the bill of exchange for the 
price had been paid. 
Decision. j^ follows that the goods seized were the property of the 

American claimants, and were not subject to seizure; 
the court decrees accordingly, and orders the goods to be 
released to the claimants. 

The other point referred to remains; and as it was 
argued and has been foreshadowed in other cases, I will 
deal with it, although, in view of the decision just given r 
it becomes immaterial. 
ishsSp. m Bnt 1^ is that as the cargo was in a British ship, it could 
not be seized or captured even if it was enemy property. 
In my opinion this proposition is wholly lacking in 
foundation. No authority was cited for it. Such a 
contention has never been put forward, because, as I 
think, no one has thought that it could prevail. 

Enemy property at sea or in port can be captured or 
seized except where an express immunity has been 
created. 

Abundance of authority exists for this in the acknowl- 
edged books of international jurists. I will only cite 
one, namely, Wheaton; I will cite from what is regarded 
as the best edition, that of Mr. Dana, published in 1866. 
After an exhaustive and most interesting account of 
the right of capture according to the usage of war on 
land and on sea, Wheaton wrote as follows: " Section 
355. The progress of civilization has slowly, but con- 
stantly, tended to soften the extreme severity of the 
operations of war by land; but it still remains unrelaxed 
in respect to maritime warfare, in which the private 
property of the enemy taken at sea or afloat in port is 
indiscriminately liable to capture and confiscation. 
This inequality in the operation of the laws of war, by 
land and by sea, has been justified by alleging the usage 
of considering private property, when captured in cities 
taken by storm, as booty; and the well-known fact that 
contributions are levied upon territories occupied by a 
hostile army, in lieu of a general confiscation of the 
property belonging to the inhabitants; and that the 
object of wars by land being conquest or the acquisition 
of territory to be exchanged as an equivalent for other 
territory lost, the regard of the victor for those who are 



Wheaton 
opinion. 



Dana's com- 
ment. 



INTERNATIONAL LAW I DECISIONS AND NOTES. 17 

to be or have been his subjects naturally restrains him 
from the exercise of his extreme rights in this particular; 
whereas, the object of maritime wars is the destruc- 
tion of the enemy's commerce and navigation — the sources 
and sinews of his naval power — which object can only 
be attained by the capture and confiscation of private 
property." 

I will also cite Mr. Dana's note upon this section as it 
was written years after the declaration of Paris. 

"Note 171. Distinction between enemy's property at 
sea and on land. The text does not present the principal 
argument for the distinction observed in practice be- 
tween private property on land and at sea; nor, indeed, 
has this subject been adequately treated upon principle, 
if that has even been attempted, by most text writers. 
War is the exercise of force by bodies politic for the 
purpose of coercion. Modern civilization has recognized 
certain modes of coercion as justifiable. Their exercise 
upon material interests is preferable to acts of force 
upon the person. Where private property is taken, it 
is because it is of such a character or so situated as to 
make its capture a justifiable means of coercing the power 
with which we are at war. If the hostile power has an 
interest in the property which is available to him for 
the purposes of war, that fact makes it prima facie a 
subject of capture. The enemy has such an interest in 
all convertible and mercantile property within his control, 
or belonging to persons who are living under his control, 
whether it be on land or at sea; for it is a subject of taxa- 
tion, contribution, or confiscation. The humanity and 
policy of modern times have abstained from the taking 
of private property, not liable to direct use in war, when 
on land. Some of the reasons for this are the infinite 
varieties of the character of such property — from things 
almost sacred. to those purely merchantable; the difficulty 
of discriminating among these varieties: the need of 
much of it to support the life of noncombatant persons 
and of animals; the unlimited range of places and objects 
that would be opened to the military; and the moral 
dangers attending searches and captures in households 
and among noncombatants. But on the high sens these 
reasons do not apply. Strictly personal effects ore not 
taken. Cargoes are usually purely merchandise. Mer- 
chandise sent to sea is sent voluntarily; embarked by 
merchants or. an enterprise of profit, taking the risks of 



18 INTERNATIONAL LAW! DECISIONS AND NOTES. 

war; its value is usually capable of compensation in 
money, and may be protected by insurance; it is in the 
custody of men trained and paid for the purpose; and 
the sea, upon which it is sent, is res omnium, the common 
field of war as well as of commerce. The purpose of 
maritime commerce is the enriching of the owner by the 
transit over this common field; and it is the usual object 
of revenue to the power under whose government the 
owner resides. 
summary. "The matter may, then, be summed up thus: Merchan- 

dise, whether embarked upon the sea or found on land, 
in which the hostile power has some interest for purposes 
of war, is prima facie a subject of capture. Vessels and 
their cargoes are usually of that character. Of the infinite 
varieties of property on shore some are of this character 
and some not. There are very serious objections of a 
moral and economical nature to subjecting all property 
on land to military seizure. These objections have been 
thought sufficient to reverse the prima facie right of cap- 
ture. To merchandise at sea these objections apply with 
so little force that the prima facie right of capture 
remains." 

There is no distinction now to be made between capture 
at sea and seizure in port; and apart from the practice 
introduced by the declaration of Paris in favor of neutral 
vessels it does not matter in what ships the cargoes seized 
ciuSef ta Coun " or ca ptured may happen to be. According to the order 
made in council, in 1665, as to the rights of the Lord High 
Admiral in former times, which are now the rights of the 
King in his office of admiralty, "all ships and goods 
coming into ports, creeks, or roads of England or Ireland, 
unless they come in voluntarily on revolt or are driven 
in by the King's cruisers," belonged to the lord high 
admiral, and now belong to the Crown, and according to 
Lord Stowell, "Usage has construed this to include ships 
and goods already come into ports, creeks, or roads, and 
these not only of England and Ireland, but of all the 
dominions thereunto belonging"; see the Rebeckah. 23 
Enemy goods It has never been urged that enemy goods are free from 

In British ships. . f J ° . . . , . . 

capture or seizure if they happen to be in British ships. 
This is, no doubt, the reason why there are no reported 
judgments upon the point, but if decisions of prize courts 
are desired to show that enemy cargoes in British ships 
have been captured, reference can be made to the Con- 

a« (1799) I. C. Rob. 227. 



INTERNATIONAL LAW : DECISIONS AND NOTES. 19 

queror 24 and the Mashona, 25 and the Journal of Compara- 
tive Legislation, 1900, page 326. See also The Cargo ex 
Emulous, 26 sub nomine Brown v. The United States, 27 for 
the opinion of Story J. in similar cases. 

As to the suggestion that the right of seizure or capture 
of enemy property carried as cargoes in British ships no 
longer exists after the declaration of Paris, it is obvious 
that the declaration only modified or limited the right in 
favor of neutrals for the benefit and protection of the 
commerce of neutrals and in the interest of international 
comities, and did not in any other respect weaken or 
destroy the general right. 

It is well known that the United States of America trine* 6 " 10 * 11 d ° c " 
refrained from acceding to the declaration of Paris 
because they desired that all property of private persons 
should be exempted from capture at sea — to which most 
other States have always refused to agree. 

And in practice what would become of such cargoes? 
A British ship could not, in times of war, carry it or hand 
it over to the enemy either directly or through any inter- 
mediary, as it is not permitted to her to have any inter- 
course with the enemy. 

In my view it is abundantly clear that enemy goods 
carried in British vessels are subject to seizure in port and 
capture at sea in times of war. 

As the cargo has been sold, the order of the court will 
be for the payment out of the proceeds to the claimants. 

The Attorney General. I ask for a reasonable time 
for appealing. 

The President. Certainly. Stay of proceedings for 
three weeks, and, if notice is given for appeal, stay of 
proceedings will be till the hearing of the appeal. 



THE "MARIA." 

IN H. B. M. PRIZE COURT FOR EGYPT. 

March 17, 1915. 
1 Trehern, British and Colonial Prize Cases, 259. 

Claim for condemnation of the Turkish sailing ship c J£ temeatofUw 
Maria, a vessel of 27 tons engaged in general coasting 

« (1800) 2 C Rob. 303. 

as (1900) 10 Cape Times L. R. 163. 

*« (1813) 1 Gallison, 563. 

» (1814) 8 Cranch, 110. 



20 INTERNATIONAL LAW : DECISIONS AND NOTES. 

trade, which was seized at Alexandria shortly after the 
outbreak of war between Great Britain and Turkey 
on November 5, 1914. 
ti(Ss viand xl Grain, J. i I am of opinion that counsel who appears 
on behalf of the master and owner of this vessel, the 
sailing ship Maria, has not been able to show any cause 
why she should not be condemned. He admits that she 
does not come under Convention VI or XI of The Hague 
Conference, 1907, as although Turkey was a party to 
that conference, and the conventions were signed by her 
diplomatic representative, they were never ratified by the 
Sultan of Turkey. But he submits that she comes under 
an established rule of law that small coasting vessels are 
exempt from capture and confiscation, and he quotes the 
judgment of Sir Samuel Evans in The Berlin (ante, p. 29; 
[1914] p. 265), in which he states his opinion " that it has 
become a sufficiently settled doctrine and practice of the 
law of nations that fishing vessels plying their industry 
near or about the coast * * * are not properly sub-' 
jects of capture in war so long as they confine themselves 
to the peaceful work which the industry properly in- 
volves." 
Decision. j a;m j? opinion that this dictum applies merely to 

small fishing boats belonging to men who are earning 
their livelihood and supplying the food of the small com- 
munities on the coasts. The vessel now before me is a 
general trading vessel of 27 tons, carrying on the general 
trade of the country, and, as The Hague conventions do 
not apply, is liable to capture and confiscation. This ship 
is therefore an enemy ship lawfully captured, and the 
order of the court is that she be confiscated and sold. 23 



THE "PAKLAT." 

Supreme Court of Hong-Kong. In prize, April 14, 15, 1915. 

1 Trehern, British and Colonial Prize Cases, 515. 
CAUSE FOR CONDEMNATION OF ENEMY SHIP AS PRIZE. 

On August 21, 1914, the Paklat, a German steamship 
of 1,657 tons belonging to the Norddeutscher Lloyd Linie, 
whilst bound from Tsingtau to Tientsin with women and 
children refugees, was captured by H. M. S. Yarmouth 
and brought to Hong-Kong as prize. The blockade of 

2 8 See note, ante, p. 122. 



INTERNATIONAL LAW : DECISIONS AND NOTES. 21 

Tsingtau was then imminent, and it was in fact besieged 
by the allied forces on August 27. 

It was contended on behalf of the owners that the vessel, 
which, it was alleged, was going to be interned at Tientsin 
to be used for the housing of destitute refugees, was 
" employed on a philanthropic mission" within the mean- 
ing of article 4 of the Eleventh Hague Convention, which 
exempts from capture " vessels employed on religious, 
scientific, or philanthropic missions." 

April 15. — Rees-Davies, C. J.: This ship was taken 
and seized as prize by H. M. S. Yarmouth on August 21, 
'1914, off the Shalientau Island, and was brought to the 
port of Hongkong. It is now asked that she be condemned 
as prize. 

The defense, as set up on affidavits of the master of 
the vessel, alleges that she was requisitioned by the 
government at Tsingtau on the outbreak of the war to 
carry women and children to Tientsin, as the train 
service was overcrowded, and the intention was to intern 
the ship at Tientsin until the end of the war, the ship to 
be used in the meantime to house such women and chil- 
dren as had insufficient means to live on land. It is also 
alleged that the ship was specially fitted for this purpose. 

The master also states that he had express instructions 
from the Tsingtau government to fly the German flag 
and the parliamentary flag (white truce flag) at the fore- 
mast, and to carry all lights at night. It is also alleged 
that the ship was available for any women or children 
of any nationality, other than Chinese, who might wish 
to avail themselves of her use, and that no passage money 
was demanded or paid by the passengers in question. 

Under these circumstances it is contended that she 
was on a " philanthropic mission" within the meaning of 
article 4 of the Eleventh Hague Convention, 1907, and is 
exempt from capture. 

At the outset of the proceedings I expressed the strong- 
est doubt as to whether it could be so regarded, and the 
Crown has since fortified me with an extract, under the 
hand and seal of the assistant undersecretary of state 
for foreign affairs, of the official report of the committee 
of the Deuxieme Conference Internationale de la Paix. 
La Haye, 1907 (Actes et Documents), which, I think. 
leaves no reasonable doubt as to the construction to be 
placed on the article in question. It reads (inter alia) : 
" It is obvious that such a favor can only be granted under 



22 INTERNATIONAL LAW I DECISIONS AND NOTES. 

the condition that there is no intermeddling (immiscer) 
in the war operation. In order to avoid all difficulties 
the power whose ship in question bears the colors must 
refrain from involving her in any war service." The 
favor granted to the said ship bestows upon her a sort 
of neutralization which must last until the end of (all) 
hostilities, and which must prevent her from having 
her destination altered." 

Now, as to the construction which has to be placed on 
the foregoing language, I entirely agree with the attorney 
general's rendering, and will adopt the words which he 
used in argument. The word " neutralization " here 
means that the ship is placed entirely outside the pale 
of any warlike operations, and must in consequence keep 
herself entirely apart from any service in connection 
with the war or that may have any effect on the war. 

It was contended on behalf of the owners that the 
intention to intern the refugees at Tientsin was a philan- 
thropic mission, and the recent decision of Mr. Justice 
Gompertz in the Hanametal, (1 B. and C, P. C. 347), a 
neutral vessel, was relied upon; that the carrying of 
refugees was not intermeddling with warlike operations, 
and so was not a breach of neutrality law. I think that 
there is no real analogy between the reasoning adopted 
in that case and the present. There is a fundamental 
difference, as the attorney general contends, between the 
" neutralization " of an enemy ship within the meaning 
of the official report on the convention and the neutrality 
of a nonbelligerent ship. There are many things which 
the latter may be able to do which in some measure may 
affect the war without rendering herself liable for a 
breach of neutrality, and in such case it must be demon- 
strated to the court by the captor that some unneutral 
service has been performed. This onus, I understand, 
is what the Crown failed to discharge in the case of the 
Hanametal (1 B. and C, P. C. 347). 

The fact that a neutral ship may carry refugees with- 
out being liable to capture does not imply the same power 
in an enemy ship, although given "une sorte de neutralisa- 
tion" for the purpose of the philanthropic mission in ques- 
tion. To construe "philanthropic mission" as suggested 
might lead to serious consequences which clearly could 
not have been contemplated by the article, and it might 
enable an enemy vessel to escape to a neutral port under 
any similar professed act of philanthropy. If it were 



INTERNATIONAL LAW I DECISIONS AND NOTES. 23 

intended to cover such an act as the conveyance of non- 
combatants under such conditions to a neutral port, the 
convention would not have left it in such vague and in- 
definite language; and some such system as safe conducts 
furnished in advance would presumably have been con- 
templated, as, I understand, has often been the custom 
in the case of expeditions dispatched for the purposes of 
science or religion, and in the case of cartel ships. 

I may add that, assuming the blockade has existed at 
Tsingtau (which, I understand, in fact did not exist until 
August 27), no rule of law exists which obliges a besieging 
force to allow all noncombatants, or only women, children, 
the aged, the sick and wounded, or subjects of neutral 
powers, to leave the besieged locality unmolested. 
Although such permission is sometimes granted, it is 
in most cases refused, because the fact that noncombatants 
are besieged together with combatants, and that they 
have to endure the same hardships, may, and very often 
does, exercise pressure upon the authorities to surrender. 
(See Oppenheim's International Law, vol. 2, p. 193.) 
This being the case, if the convention ever contemplated 
such a "philanthropic mission," which in the case of 
a blockaded port would come directly in conflict with 
the custom I have stated, it would have provided for it 
in express and unequivocal language. 

The decision I give is that the vessel was properly 
seized as a prize of war, and that she is subject to con- 
demnation. There will be a decree of condemnation, 
the Crown to receive such costs as have been occasioned 
by the claim. 

THE "SIMLA." 

[Admiralty in prize.] 

Sir Samuel Evans (the president). May 10, 1915. 

1 Trehern, British and Colonial Prize Cases, 281. 

CAUSE FOR THE CONDEMNATION OF GOODS SENT BY 

PARCEL POST. 

The subject-matter of this claim was a number of par- s **t«iaoi ■ f 
eels of miscellaneous goods, consisting of elephant tusks, 
leopard and snake skins, and curios, sent by parcel post 
by German colonists in German East Africa, addressed 
to various persons resident in Germany. The goods were 
shipped on the German mail steamer Emir, which was 



24 INTERNATIONAL LAW! DECISIONS AND NOTES. 

captured by a British warship after the outbreak of 
war between Great Britain and Germany, and was taken 
into Gibraltar, where she was condemned. The goods in 
question, of which there were 31 packages, were reshipped 
in the British steamship Simla, and were seized on Jan- 
uary 27, 1915, by the collector of customs in the port of 
London, after the arrival of the Simla in the Thames. 
Parcel post. Harold Murphy, for the procurator general. Article 1 

of the Eleventh Hague Convention, which provides that 
"The postal correspondence, whether of neutrals or of 
belligerents, and whether its character is official or pri- 
vate, found at sea in a ship, whether neutral or enemy, is 
inviolable," does not apply to parcels sent by parcel post. 
Herr Kriege, the German delegate at the conference, who 
proposed this particular regulation, explained that " postal 
correspondence" was not intended to include parcels. 
(See Westlake's International Law, volume 2 (2d ed.), p. 
•185) and Oppenheim's International Law, volume 2 (2d 
ed.), p. 237.) 

Sir Samuel Evans (the president). There is no one 
here to suggest that these goods are inviolable ? 

No; there has been no communication at all, and no 
appearance has been entered. 

Sir Samuel Evans (the president) . Very well. There 
is no appearance, and I order that the goods be con- 
demned. 



case. 



THE "SOUTHFIELD." 

[Admiralty in prize.] 

Sir Samuel Evans (the president). July 5, 15, 1915. 

1 Trehern, British and Colonial Prize Cases, 332. 

SUIT FOR CONDEMNATION OF CARGO AS PRIZE. 

statement of the On July 16, 1914, the British steamship Souihfield left 
Novorossiisk, a Russian Black Sea port, with a cargo of 
barley shipped by Wiilker & Co., a firm of German mer- 
chants, and consigned "to order, Emden." 

On July 20, one J. R. Heukers, a Dutch merchant, 
carrying on business at Groningen in Holland, bought 
197,000 kilos of the barley and took up the documents 
on July 27; and, by contracts of sale dated July 24 and 
25, one Wilhelm Barghoorn, another Dutch merchant, 
bought other portions of the cargo amounting to 200,000 
kilos, the property in which was transferred to him on 



INTERNATIONAL LAW I DECISIONS AND NOTES. 25 

July 29 and 31. Both merchants at once resold to cus- 
tomers of their own. 

War broke out between Great Britain and Germany on 
August 4, and on August 8, when the SoutJifield put into 
Plymouth, she was diverted to Portsmouth where the 
cargo was seized as prize. The vessel was then sent 
round to London where the cargo was discharged and 
sold, and the proceeds paid into court. 

The two Dutch merchants claimed the release of the 
proceeds of their goods on the ground that they became 
purchasers before the outbreak of the war, and with no 
knowledge or expectation of the outbreak of war. 

July 15. Sir Samuel Evans (the president). The ^g ^ 5 in tran " 
questions arising for decision depend upon the effect of 
the intervention of a state of war upon the rights of cap- 
ture of a belligerent in respect of goods sold by an enemy 
to a neutral while the goods and the ship in which they 
are laden are in transitu. 

The goods consisted of quantities of barley shipped 
before the war at a Russian port upon a British ship and 
consigned to a German port. During the voyage the 
goods were sold by enemy merchants to neutral mer- 
chants — namely, to two Dutch merchants — Heukers and 
Barghoorn, carrying on business at Groningen. The 
transactions relating to the sale to Heukers fell within 
the period from July 20 to July 28, 1914, and those 
relating to the sale to Barghoorn within the last week in 
July, 1914. Apart from any question depending upon 
the intervention of war it is not disputed that the prop- 
erty in the goods had passed to the neutral purchasers 
before the capture. 

The contention of the Crown was that when war was n , o P utbre8k of 
declared between this country and Germany on August 
4, 1914, the goods, which were still in transitu, became 
subject to capture by the Crown, and were confiscable at 
the time of the capture and seizure on August 8, notwith- 
standing the prior sales to the neutrals, on the ground 
that at the time of such sales war was imminent or in 
contemplation of the enemy vendors. 

It is important to examine closely the principle which 
governs the right of capture of goods transferred in 
transitu and to ascertain accurately its limits, as it is 
sometimes apt to be loosely stated. 

In order to deduce the rule, it will be sufficient, I 
think, to refer to two leading cases and to one authorized 
textbook. I take them in order of date. 



war. 



26 INTERNATIONAL LAW I DECISIONS AND NOTES. 

In the Vrow Margareiha (1 C. Rob. 336, at p. 337; 1 
Eng. P. C. 149, at p. 151) Lord Stowell pronounces upon 
ion. toweIls opin "khe subject as follows: "In the ordinary course of things 
in time of peace — for it is not denied that such a con- 
tract may be made and effectually made (according to 
the usage of merchants) — such a transfer in transitu 
might certainly be made. It has even been contended 
that a mere delivering of the bill of lading is a transfer of 
the property. But it might be more correctly expressed, 
perhaps, if said that it transfers only the right of delivery; 
but that a transfer of the bill of lading, with a contract 
of sale accompanying it, may transfer the property in 
the ordinary course of things so as effectually to bind the 
parties and all others can not well be doubted. When 
war intervenes another rule is set up by courts of ad- 
miralty which interferes with the ordinary practice. In 
a state of war, existing or imminent, it is held that the 
property shall be deemed to continue as it was at the 
time of shipment till the actual delivery; this arises out 
of the state of war, which gives a belligerent a right to 
stop the goods of his enemy. If such a rule did not 
exist, all goods shipped in an enemy's country would be 
protected by transfers which it would be impossible to 
detect. It is on that principle held, I believe, as a gen- 
eral rule, that property can not be converted in transitu, 
and in that sense I recognize it as the rule of this court. 
But this arises, as I have said, out of a state of war 
which creates new rights in other parties, and can not be 
applied to transactions originating, like this, in a time of 
peace." 
story's opin- j n the WO rk of Mr. Justice Story on the Principles and 
Practice of Prize Courts, that celebrated jurist states the 
rule in the following passage (Pratt's Edition, pp. 64-65) : 
" In respect to the proprietary interests in cargoes, though, 
in general, the rules of the common law apply, yet there 
are many peculiar principles of prize law to be con- 
sidered; it is a general rule that, during hostilities, or 
imminent and impending danger of hostilities, the prop- 
erty of parties belligerent can not change its national 
character during the voyage, or, as it is commonly 
expressed, in transitu. This rule equally applies to ships 
and cargoes; and it is so inflexible that it is not relaxed, 
even in owners who become subjects by capitulation after 
the shipment and before the capture. * * * The 
same distinction is applied to purchases made by neu- 



ion 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 27 

trals of property in transitu, if purchased during a state 
of war existing or imminent, and impending danger of 
war, the contract is held invalid, and the property is 
deemed to continue as it was at the time of shipment until 
the actual delivery. It is otherwise, however, if a con- 
tract be made during a state of peace, and without 
contemplation of war; for, under such circumstances, the 
prize courts will recognize the contract and enforce the 
title acquired under it. * * * The reason why 
courts of admiralty have established this rule as to trans- 
fers in transitu during a state of war or expected war, 
is asserted to be, that if such a rule did not exist all goods 
shipped in the enemy's country would be protected by 
transfers, which it would be impossible to detect." 

Lastly, in the Baltica (11 Moo. P. C. 141; 2 Eng. P. C. op K££ sdown!3 
628) in the judgment of the lords of the privy council, 
sitting to hear appeals in prize, Lord Kingsdown (then 
Mr. Pemberton Leigh) deals with the rule as applicable to 
ships and goods in the following passages: "The general 
rule is open to no doubt. A neutral, while a war is 
imminent, or after it has commenced, is at liberty 
to purchase either goods or ships (not being ships of 
war) from either belligerent, and the purchase is valid, 
whether the subject of it be lying in a neutral port or in an 
enemy's port. During a time of peace, without prospect 
of war, any transfer which is sufficient to transfer the 
property between the vendor and vendee is good also 
against a captor if war afterwards unexpectedly breaks 
out. But, in case of war, either actual or imminent, this 
rule is subject to qualification, and it is settled that in 
such case a mere transfer by documents which would be 
sufficient to bind the parties is not sufficient to change 
the property as against captors as long as the ship or 
goods remain in transitu. 

"With respect to these principles, their lordships are 
not aware that it is possible to raise any controversy; 
they are the familiar rules of the English prize courts, 
established by all the authorities, and are collected and 
stated, principally from the decisions of Lord Stowell, by 
Mr. Justice Story, in his Notes on the Principles and 
Practice of Prize Courts, a work which has been selected 
by the British Government for the use of its naval officers 
as the best code of instruction in the prize law. The 
59650—24 3 



28 INTERNATIONAL UW: DECISIONS AND NOTES. 

passages referred to are to be found in pages 63, 64, of 
that work. 

"In order to determine the question, it is necessary to 
consider upon what principle the rule rests, and why 
it is that a sale which would be perfectly good if made 
while the property was in a neutral port, or while it was 
in an enemy's port, is ineffectual if made while the ship 
is on her voyage from one port to the other. There 
seem to be but two possible grounds of distinction. The 
one is, that while the ship is on the seas, the title of the 
vendee can not be completed by actual delivery of the ves- 
sel or goods; the other is, that the ship and goods, having 
incurred the risk of capture by putting to sea, shall not be 
permitted to defeat the inchoate right of capture by the 
belligerent powers until the voyage is at an end. 

"The former, however, appears to be the true ground 
on which the rule rests. Such transactions during war, 
or in contemplation of war, are so likely to be merely 
colorable, to be set up for the purpose of misleading or 
defrauding captors, the difficulty of detecting such 
frauds, if mere paper transfers are held sufficient, is so 
great that the courts have laid down as a general rule 
that such transfers, without actual delivery, shall be 
insufficient; that in order to defeat the captors, the pos- 
session, as well as the property, must be changed before 
the seizure. It is true that, in one sense, the ship and 
goods may be said to be in transitu till they have reached 
their original port of destination; but their lordships 
have found no case where the transfer was held to be 
inoperative after the actual delivery of the property 
to the owner" (11 Moo. P. C, at pp. 145-146; 2 Eng. 
P. C, at pp. 630-632). 
transitn Sfersin -^ m ight De argued that according to these authorities 
transfers in transitu are invalid against belligerent 
captors upon the intervention of war unless there is actual 
delivery before capture; or, in other words, that if war 
has intervened no transfer by documents alone can 
defeat the right of capture. But, in my opinion, that 
proposition is too wide, and is not an accurate delimita- 
tion of the true rule. In the passages cited Lord Stowell 
speaks of "a state of war existing or imminent"; Mr. 
Justice Story of " a state of peace, without contemplation 
of war," and of " a state of war existing or imminent, 
and impending danger of war": and Lord Kingsdown of 
"war, either actual or imminent," or "war unexpectedly 



INTERNATIONAL LAW I DECISIONS AND NOTES. 29 

breaking out" (contrasting it with "a time of peace, 
without prospect of war"), and of " transactions during 
war or in contemplation of war." 

It is important to note the reasons for the rule which are 
elaborated by Lord Kingsdown thus [his lordship repeated 
the passage set out above, beginning "Such transactions 
during war," and continued]: In my view the element 
that the vendor contemplated war, and had the design 
to make the transfer in order to secure himself and to 
attempt to defeat the rights of belligerent captors, is 
necessarily involved in the rule which invalidates such 
transfers. Sales of goods upon ships afloat are now of 
such common occurrence in commerce that it would be 
too harsh a rule to treat such transfers as invalid unless 
such an element existed. 

I have been considering the rule in its application to h ^l^ &iion of 
the sale or transfer of goods, but it is well to note that 
special and highly artificial rules as to the transfer of 
vessels during or preceding a state of war are now laid 
down in the declaration of London of 1909 — as agreed 
to by the representatives of the powers, and as applied 
by the orders in council in this countn^. But theso do 
not apply to goods or merchandise. 

As to the facts in these two cases, it is abundantly 
clear that the neutral purchasers acted with complete 
bona fides throughout; they paid for the goods, and resold 
them to neutral customers of their own before war was 
declared. This would not necessarily conclude the 
matter. 

But I am also satisfied that the vendors did not have 
the war between their country and this country (to 
which the ship carrying the goods belonged) in contem- 
plation when they sold the goods. The imminence of 
war between Germany and Kussia has no materiality in 
considering these cases. In the light of after events, the 
war with this country may be spoken of as having been 
imminent, regarded from the point of view of time, in 
the last two weeks of July; but there is no evidence that 
it was regarded as imminent in its proper meaning of 
" threatening or about to occur" by German merchants at 
that time; not only so, but I find, after investigation in 
various directions, and on grounds which I deem satis- 
factory, that it was not in fact so regarded by them. 
What the hidden anticipation of the Government of 
the German Empire might have been upon the subject 



30 



INTERNATIONAL I,A\V : DECISIONS AND NOTES. 



Decision. 



it is not for me to speculate; but I may express my 
humble opinion that our intervention in the war upon 
the invasion of Belgium in defense of treaty obligations, 
against the breach of such obligations by the invaders, 
was a complete surprise even to their Government. 

Documents and facts which throw light upon the 
history of the days I have been dealing with between 
July 24 and August 4, 1914, are, I think, admirably 
collected and stated in a work called the History of 
Twelve Days, by Mr. J. W. Headlam. 

On the grounds that the German vendors had no 
thought of the imminence of war between Germany and 
this country, and did not have such a war in contempla- 
tion at any time while the transactions of sale were taking 
place or before they were completed, I hold that the 
sales to the two Dutch merchants were valid, and that 
the goods were not confiscable. And I decree the release 
to them respectively of the net proceeds of the sale of 
their respective goods, which are now in court. 



Decision. 



Statement 
the case. 



THE "GLITRA." 

July 30, 1915. 
1 Entscheidungen des Oberprisengerichts, 34. 

In the prize matter concerning the English steamer 
Glitra, with Leith as her home port, the imperial superior 
prize court in Berlin, at its sitting of July 30, 1916, has 
found as follows : 

The appeals lodged by the plaintiffs under Nos. 9 to 12 of the decision 
are rejected as inadmissible; the appeals of the remaining plaintiffs 
are denied as unfounded. 

The costs of the proceedings in appeal are to be borne by the plaintiffs. 

REASONS. 



of 



On October 20, 1914, the steamer Glitra, belonging to 
the firm of Salversent & Co., of Leith, with a general 
cargo on the way from Leith to Stavanger, was brought 
to by a submarine, and after the crew had left the ship 
she was sunk, together with her cargo. 
reSSaSons prize ^ n answer to the summons of the prize court issued in 
accordance with section 26 of the prize court regulations, 
the 13 parties interested in the cargo submitted claims 
for compensation for damages due to the destruction of 
their merchandise. The plaintiffs are members of Nor- 
wegian firms; the plaintiff figuring in claim No. 2 alone 



INTERNATIONAL LAW I DECISIONS AND NOTES. 31 

is a Danish insurance company which presents the claims 
of its Norwegian policyholders. 

The prize court has found that the ship which was 
sunk was subject to seizure and has denied the claim. 

The appeal lodged against this decision is not well 
founded. 

The prize court has, in the first place, impartially n^S^" " 011 
established that the Glitra was an English ship, and that, 
given the circumstances of the case, the destruction of the 
ship was necessary, in order to insure the capture. The 
prize court did not concern itself with the question as to 
whether or not the merchandise, on account of which 
claims for compensation were submitted, was neutral 
merchandise, because it came to the conclusion that even 
if such had been the case there would be no cause for a 
claim to compensation for damages. In justification of 
this conclusion it was stated that the question thus brought 
up had not been decided either in the prize regulations or 
in any international treaties, and, especially, it had not 
been decided in the London declaration, as is evidenced iJ^Sm* 1 ™ ° f 
by its text and the history of its origin. It was said 
that opinion had been divided. It was stated that by 
the French memoir neutral cargoes were not entitled to 
claims for damages, because, when the captor, for military ■ 
reasons, holds the destruction of the prize to be necessary, 
such a situation presents a military measure; while, on 
the other hand, the English memoir admits the claim, 
provided the case does not involve contraband, because 
a permissible cargo on board an enemy ship is not subject 
to seizure. The question formulated as a guide for the 
preliminary discussion : 

In view of the principle that neutral merchandise c -^^lf mer * 
under enemy flag is not subject to seizure, will the owner 
of the merchandise, in case of the destruction of the ship, 
have to be indemnified, or is, in such case, the destruction 
of a ship a military action which does not obligate the 
belligerent to make indemnification ? 

had been discussed without bringing about an under- 
standing. The prize court observed that during these 
negotiations the question mainly dealt with was the 
admissibility of the destruction of neutral ships, subject 
to seizure. Confining herself to this particular matter, 
Germany had expressed herself in favor of compensation 
for neutral goods not subject to seizure. Japan alone had 
declared herself with regard to the matter of neutral mer- 



tion 



32 n:r;\ r ATin.\ \i. LAW" DECISIONS AND NOTES. 

chandise on an enemy ship which was destroyed, and that 
indem.nifica m t h e sense f England. Nothing indicated that, as 
matters stood, Germany had meant to establish in the 
prize regulations a principle to the effect that when an 
enemy ship was destroyed, the neutral cargo was entitled 
to a claim for indemnification. In this sense at most an 
argument could be deduced from article 114 of the prize 
regulations, in so far as it was here presupposed that in 
destroying any ship compensation must be made for the 
incidental destruction of that part of the cargo not sub- 
ject to seizure. The argument was considered, however, 
not sufficiently conclusive. It might readily be assumed 
that article 114 referred only to the destruction of neutral 
ships, in view of the fact that the preceding and the fol- 
lowing provision of the prize regulations dealt only with 
such case. 

This view must, in effect, be approved. 
pHras! prke The c i ues tion to be settled is as to whether or not in 
case an enemy ship is lawfully destroyed, compensation 
must be made for neutral merchandise on board such 
ship which is destroyed at the same time. It is clear 
that neither the prize regulations nor the London 
declaration, contains an express prescription in regard 
' to this matter. Nor has the prize regulation indi- 
rectly provided for the settlement of that matter. The 
plaintiff believes that such a provision is found in No. 
114 of the prize regulations. The judge of first instance 
has justly denied this, although we can not absolutely 
agree with him in all the reasons he gives anent this 
matter. In the article referred to the commander is 
directed, before proceeding with the destruction of a ship, 
to see if the loss thereby accruing to the enemy is equiva- 
lent to the compensation for damages which must be 
paid for that part of the cargo not subject to seizure 
which is destroyed at the same time. 
Destruction. j n connection with this, reference is made, between 
brackets, among other things to article 18 which deals 
with the seizure of enemy ships and states which part of 
the cargo is, at the same time, subject to seizure. This 
in effect, looks as though the author of the prize regula- 
tions had, when dealing with article 114, thought that 
in the case of the destruction of an enemy ship compensa- 
tion must be made for the part of the cargo not subject 
to seizure; it must also be admitted that the said refer- 
ence is opposed to the course of reasoning followed by 



INTERNATIONAL LAW! DECISIONS AND NOTES. 33 

the first instance when it assumes that article 114, even 
as the preceding and the following provision, dealt only 
with the destruction of neutral ships. In spite of that, 
however, the provision can not be given such scope of in- 
terpretation as that with which the plaintiffs meant to * 
endow it. If it were so understood, it would come into a 
certain material contradiction with that which the prize 
regulation prescribes in the immediately connecting arti- 
cle. As can be clearly seen from this, the prize regula- 
tion does not hold that, in every case compensation must 
be made for the destruction of merchandise not subject to 
seizure. In the case of the lawful destruction of a neu- 
tral ship, compensation is prescribed for the merchandise, 
not subject to seizure, destroyed along with the ship, in 
so far as this concerns neutral merchandise, but not in re- 
gard to enemy merchandise, although likewise not subject 
to seizure, under the protection of the neutral flag. We 
must, furthermore, bear in mind that there are also enemy 
ships that are not subject to seizure, and, therefore, not 
subject to destruction, so that, even although at some 
time— possibly by reason of a pardonable error — the de- 
struction took place, it may yet be asked, whether or not a 
distinction should be drawn in regard to compensation 
for values destroyed along with the ship, between neutral 
and enemy merchandise, and for this reason it might 
have seemed advisable to direct the commanders of 
vessels, for such eventualities, to make the inquiry in- 
cumbent upon them according to article 114. But it is 
above all important to remember that article 114 is not 
sedes materiae and that, therefore, even assuming that 
the author of the law thought that even in case of the 
lawful destruction of an enemy ship claims for compensa- 
tion could be presented in behalf of the merchandise of 
neutrals, it would be wrong to find therein a positive 
decision of this at least doubtful, and at all events very 
controverted question which, although discussed at the 
London Conference, was left open. 

As Wehberg points out in Oesterreich. Zeitschrift fur Positivelaw - 
offentliches Recht, Tome II, 3, page 282, Heilfron, Jur. 
Wochenschrift, 1915, page 486, goes too far when he 
attributes to the prize regulations only the importance 
of an order promulgated by the Emperor to the naval 
authorities. The prize regulations contain, to a large 
extent, positive law. But, with regard to the provision 
now under consideration, Heilfron's characterization fits 



34 INTERNATIONAL LAW : DECISIONS AND NOTES. 

perfectly. This article 114 is, in effect, but an order to 
the commanders of ships. Through it only the war lord 
speaks, and not the legislator. It is not its purpose to 
establish material right and it does not do so. 
Law of warfare. jj^ therefore, we are compelled to consider the most 
general principles of law in connection with the rules of 
the general law of warfare, it is found with absolute cer- 
tainty that neutrals are not entitled to present a claim 
in case the destruction of the prize was, in the circum- 
stances, justified (art. 112 of the prize regulations). The 
bringing to and the capture of the enemy ship is a 
lawful war measure against the foreign State, approved 
in international law. Claims for damages, either on the 
part of the nationals of enemy States or on the part of 
neutrals can not in all such cases be upheld. To be sure, 
according to article 3 of the Paris declaration, neutral 
merchandise (that is not contraband) is not subject to 
capture even on board an enemy ship. It is, therefore, 
not subject to seizure in case the prize is taken to port. 
But there is no suggestion that the parties interested in 
the cargo are entitled to present claims for compensation 
for damages that have arisen as a result of the ship being 
taken to port, of an interruption in the trip or the taking 
of the ship to another than the point of destination. Nor 
is it legitimate to present a claim for compensation in 
case the merchandise itself, as a result of the seizure of 
the ship, has sustained damage, nor, for instance, if on 
the further journey of the prize it is lost as a result of 
an accident at sea. Since the seizure is a lawful act, 
there is no legal principle on which a claim may be pre- 
sented for the damage which the neutral has rather 
caused himself by intrusting his merchandise to a ship 
exposed to danger. Therefore, the war measure being 
lawful, there is no legal ground on which a claim for 
damages may be based in case the merchandise is lost 
because the war operation directed against the ship was, 
according to the circumstances, necesssarily directed 
against her cargo as well. 

The legal question that is important in this matter may 
arise even in the course of warfare on land. Conditions 
may be such and very frequently will be found to be 
such that, for instance, while bombarding a fortified or 
defended place, the property of neutrals is damaged. 
But even in warfare on land where private property is 
protected to a greater extent than in naval warfare, there 



INTERNATIONAL LAW : DECISIONS AND NOTES. 35 

is no question of a duty on the part of the belligerent 
State, in such cases, to make compensation even to neu- 
trals (art. 3 of the fourth convention of the Second 
Hague Conference). 

Compare Geffcken in Heffter, Volkerrecht, 8th edition, §150, note 1 
(incorrect, at least inadequate in that text of Heffter). 

Calvo, Droit International, 4th edition, Vol. IV, §§ 2250-2252. 

Bonfils, Droits des gens, 1908, § 1217. 

Bordwell, Law of War, 1908, p. 212. 

As regards the conditions of naval warfare in partic- P S aration of 
ular there is no protection either general or specific afford- 
ed to neutral merchandise by article 3 of the Paris declara- 
tion against the acts of the belligerent party resulting 
from the circumstances of the war. Article 3 referred 
to above is intended to afford protection against the prize 
law to which, up to the time of the Paris declaration, neut- 
ral merchandise in the enemy ship was exposed. Whatever 
the circumstances of the war demand, must be permitted 
to take place without regard to the fact that neutral mer- 
chandise is on board the ship. If, according to article 
2 of the Paris declaration, the neutral flag protects enemy 
merchandise, this does not mean that vice versa the en- 
emy ship is to be protected by neutral merchandise, pro- 
tected in the first place, perhaps only against destruction, 
but by the same token in innumerable cases against any 
exercise of the prize law. 

As far as can be ascertained, no one has disputed this 
even down to the most recent times. 

Compare Resolutions of the French Conseil d'Etat, May 21, 1872. 

Dalloz, Jurisprudence generale, 1871, III, No. 94, in the prize matter 
Ludwig and Vorwarts. 

Dupuis, Le Droit de la guerre maritime, 1899, p. 334. 

de Boeck, De la propria ennemie privee sous pavillion ennemi, 
1882, §146. 

Bordwell, Law of War, 1908, p. 226. 

Wheaton, International Law, 4th edition, p. 507, §359. 

Oppenheim, International Law, second edition, Vol. II, p. 201 ff. 

Calvo, Droit International, 4th edition, Vol. V, §§3033, 3034. 

Hall, International Law, 5th edition, p. 717 ff. 

The assertion of the plaintiffs that the decision of the co ^ t e ° c e ^ is p o ^ s z e 
French prize court in the matter of the Ludwig and the 
Vorwarts had been almost unanimously attacked in the 
literature, has, apart from the quotations adduced from 
the most recent sources (Wehberg and Schramm; the 
quotation from Hall, p. 187, see above, is incomprehen- 
sible), not been supported by documents, and must, 



36 INTERNATIONAL, LAW : DECISIONS AND NOTES. 

therefore, be regarded as incorrect. Only in the most 
recent times, especially in Germany, has there arisen 
a conception of the theory which postulates the obli- 
gation to make compensation as a basic principle in all 
cases of the destruction of merchandise not subject to 
seizure generally or only in so far as neutral merchan- 
dise is concerned. 

Compare, Schramm, Prisenrecht, 1913, p. 338 ff. 
Wehberg, Seekriegsrecht, 1915, p. 297, notes 3 and 4; and Oesterr. 
Zeitschrift fur offentliches Recht., cited elsewhere. 
Rehm, Deutsche Juristenzeitung, 1915, p. 454. 

In all these sources the general obligation for making 
compensation in the above sense is unmistakably felt 
to be something to be taken for granted. The founda- 
tion is lacking and where it is subsequently sought to 
establish one, it does not appear convincing when com- 
pared with the explanations given above. Nor can 
anything be done against the conclusiveness of the latter 
expositions by pointing out that warfare on land remains 
locally circumscribed to the national territory of the 
belligerents, while the ship sails the open seas. The 
fact that an enemy ship on the high seas is subject to 
seizure, and, if necessary, to attack, rests on the condi- 
tion of international law as it exists, a condition which 
is to be deplored, but which is, nevertheless, a condition 
of fact. In all other respects, so soon as the ship is on 
the high seas, she is a part of the territory of her State, 
in which the neutral, by a voluntary act on his part, 
has placed his merchandise, by lading it on a vessel 
of a belligerent country for the purpose of transpor- 
tation across the sea. 
reguiaUons. prize I* 1 conclusion, it should be stated .that it is not a 
defect of procedure when, as is stated in the appeal, 
the prize court has refrained from deciding as to whether 
or not the merchandise, to which the claims refer, was 
subject to seizure. It is the object of section 1 of the 
prize court regulations clearly to define the prize juris- 
diction, and even although in section 2 it is prescribed 
to what the decision is to extend, this means that thereby 
a line has been drawn to which the courts must confine 
themselves; but nowhere is it prescribed that in any 
particular case a decision must be handed down with 
regard to the said questions even when the settlement of 
the claims presented does not depend thereon. 



INTERN ATIONAL LAW : DECISIONS AND NOTES. 37 

Notwithstanding the summons issued under 9 and 12, 
the plaintiffs have not deposited the amount necessary 
to cover expenses. Their legal remedy was, therefore, 
not to be dealt with. 



THE "DACIA" 

vapeur capture en mer le 27 fevrier .1915 par le croiseur auxiliairt 'Europe. 29 

CONSEIL DES PRISES. 

Decision des 3 et 5 aout 1915. 
[1916] Decisions du Conseil des Prises, 180. 

Au NOM du Peuple francais, 

Le Conseil des Prises a rendu la decision suivante, entre : 

D'une part, Edward Breitung, domicilie a Marquette 
(Michigan, Etats-Unis), se disant proprietaire du vapeur 
Dacia, capture en mer le 27 fevrier 1915, a l'entree de la 
Manche, par le croiseur auxiliaire francais Europe, 
ensemble le capitaine dudit vapeur, et le Ministre de la 
Marine agissant pour le compte des capteurs et de la 
Caisse des Invalides de la Marine. 

D'autre part, vu les lettres et bordereaux du Ministre 
de la Marine des 30 mars, 29 avril, 15 juillet et 26 juillet 
1915, enregistres au Conseil les 29 avril, 16 et 29 juillet 
1915, portant envoi du dossier concernant la capture du 
vapeur Dacia et concluant a ce qu'il plaise au Conseil 
declarer bonne et valable la capture du Dacia et de tous 
ses accessoires, parmi lesquels les approvisionnements de 
bord de toute nature, y compris les vivres sans exception, 
trouves sur le navire, meme ceux reclames comme 
propriete personnelle par le capitaine MacDonald, en 
dehors des papiers de bord; 

Vu les documents constituant ledit dossier, et notam- 
ment: 

1° Le proces- verbal de capture dress e en mer le 27 
fevrier 1915; 

2° Les papiers de bord, parmi lesquels un acte en date 
a New- York du 17 decembre 1914, par lequel la Com- 
pagnie Hamburg-Amerika declare vendre le Dacia a 
Edward N. Breitung, et un affidavit du 19 decembre 1914 
dudit Breitung declarant cette vente sincere et sans 
reticences; Facte d'enregistrement americain dudit Dacia 
a Port-Arthur (Texas), le 4 Janvier 1915; le manifeste de 

» Decision inserSe dans le Journal officiel du 28 septembre 1915. 



Document*. 



38 INTERNATIONAL LAW! DECISIONS AND NOTES. 

chargement et les connaissements en date a Galveston 
(Texas) du 22 Janvier 1915; le livre de bord du Dacia; 

3° Deux conventions en date des 9 decembre 1914 et 
17 Janvier 1915 concern ant I'affretement du Dacia en vue 
du transport de sa cargaison; 

4° Les pieces concern ant la cargaison, parmi lesquelles 
les contrats de vente et transport de ladite cargaison 
passes a Breme les 10 et 12 decembre 1914, ensemble les 
factures en date du 29 decembre 1914 et la police d'assu- 
rance du risque de guerre du 22 Janvier 1915; 

Vu les memoires et observations complementaires et 
additionnelles presentes par M e Morillot, avocat au 
Conseil d'Etat, enregistrSs au Conseil les 12 mai, 13 et 28 
juillet 1915, au nom de Edward N. Breitung, se disant 
proprietaire du Dacia, concluant a ce qu'il plaise au 
Conseil: ordonner des a present la liberation du Dacia 
moyennant une caution que le Conseil arbitrera, mais 
dont le chiffre ne saurait en aucun cas depasser 870,000 
francs; declarer valable, par application de 1* article 56 
de la Convention de Londres, le transfert du Dacia 
effectue du pavilion allemand au pavilion americain 
suivant les regies de la loi am6ricaine; annuler la cap- 
ture du Dacia, declare propri6te neutre, liberer le navire 
et restituer les appro visionnem en ts et accessoires divers 
saisis en meme temps que le navire ; lui allouer la somme 
de 300,000 francs a titre de dommages-inter&ts pour le 
prejudice qui lui a ete cause* par la capture injustifiee 
de son navire, par application de 1' article 64 de la Declara- 
tion de Londres ; lui allouer une somme a fixer ulterieure- 
ment, representant le fret de la cargaison et les surestaries 
encourues par les chargeurs de ladite cargaison; 

Vu les documents annexes auxdits memoires et, parmi 
eux, un affidavit de W. Sickel, directeur a New- York de 
la Compagnie Hamburg- Amerika, en date du 13 mai 
1915, ensemble un acte de vente du 16 decembre 1914, 
par lequel celui-ci vend a Egon von Novelly ledit Dacia, 
et un acte de cession de Egon von Novelly a Breitung; — 
le document du congres des Btats-Unis intitule 63 e con- 
gres, 2° session; Senat, n° 563, contenant l'opinion de 
l'honorable Cone Johnson, solicitor pour le Departement 
d'fitat, concernant le transfert des navires de commerce 
pendant la guerre ; 

Vu les conclusions ecrites du commissaire du Gouverne- 
ment, tendant a ce qu'il plaise au Conseil decider que la 
capture du vapeur Dacia, de ses agres, apparaux, arme- 



INTERNATIONAL LAW : DECISIONS AND NOTES. 39 

ment et approvisionnements de toute nature, effective le 
27 fevrier 1915, par le croiseur auxiliaire Europe, est 
declaree bonne et valable, pour la valeur du navire etre 
attribute aux ayants droit, conform ement aux lois et 
reglements, et qu'il sera restitue au capitaine et a 
T equipage leurs effets personnels ne constituant pas des 
articles de cargaison ni de pacotille; 

Vu les autres pieces jointes au dossier; 

Vu la notification publiee au Journal officiel du 10 
avril 1915, ensemble les decisions rendues avant faire 
droit par le Conseil, les 11 mai et 8 juin 1915 et accordant, 
sur la demande de Tambassadeur des Etats-Unis, de 
nouveaux delais a Edward N. Breitung pour la production 
de ses observations; 

Vu les arretes des 6 germinal an VIII et 2 prairial an XI ; 

Vu les decrets des 9 mai 1859 et 28 novembre 1861; 

Vu la Declaration du Congres de Paris, du 16 avril 1856; 

Vu le decret du 6 novembre 1914 declarant applicable 
au cours de la presente guerre la Declaration signee a 
Londres le 26 fevrier 1909; 

Oui M. Henri Fromageot, membre du Conseil, en son 
rapport, et M. Chardenet, commissaire du Gouverne- 
ment, en ses observations a Pappui des conclusions ci- 
dessus visees; 

Le Conseil, apres en avoir delibere, considerant que, c fs£ temeatofth * 
le 27 fevrier 1915, le croiseur auxiliaire francais Europe a 
rencontre et semonce en haute mer, a P entree de la 
Manche, le vapeur Dacia battant pavilion americain et 
declarant se rendre de Norfolk (Virginie, Etats-Unis) a 
Rotterdam (Pays-Bas) ; que Fexamen des papiers du 
bord et la visite ayant fait constater que le navire, 
transportant une cargaison chargee a Galveston (Texas) 
a destination de Breme (Allemagne), etait, au debut des 
hostilites et jusqu'au 4 Janvier 1915, sous pavilion alle- 
mand, enregistre a Hambourg (Allemagne) au nom de 
la Compagnie allemande a Ham'burg-Amerika", ledit 
navire a ete capture comme inhabile a se prevaloir d'un 
transfert sous pavilion neutre op ere" au cours de la 
guerre ; 

Considerant qu 'Edward Breitung, invoquant Particle 
56 de la Declaration de Londres de 1909, soutient que 
Pfitat francais est mai fonde a meconnaitre le pavilion 
neutre porte par le Dacia, le transfert du navire sous 
pavilion americain n'ayant pas, selon lui, 6te effectue en 



40 INTERNATIONAL LAW! DECISIONS AND NOTES. 

vue d'eluder les consequences qu'entrainait pour ledit 
navire son caractere de navire ennemi ; 

Qu'il pretend faire cette preuve en soutenant que ledit 
transfer* aurait ete motive par un interest serieux et 
1 6gitime resultant de ce que : 
Nationality. p On ne saurait le considerer, n'etant pas Allemand 

naturalist Americain et se livrant, selon lui, a des affaires 
considerables, comme un pr6te-nom de la Compagnie 
Hamburg- Am erika ; 

2° Des avant la guerre il aurait songe a creer des lignes 
de navigation; 

3° II aurait eu des pourparlers en vue d'acquerir 
certains navire autres que le Dacia et ne battant pas 
pavilion allemand; 

4° Posterieurement a sa pretendue acquisition du 
Dacia, il aurait continue a s'occuper d'affaires maritimes 
et achete d'autres navires; 

5° II a declare sous la foi du serment: " J'ai achete le 
Dacia dans le cours normal de mes affaires maritimes. 
Mon unique but en faisant cette acquisition fut de me 
procurer a un prix satisfaisant line chose dont j'avais 
besoin." 

Qu'Edward Breitung produit notamment a l'appui de 
ses dires: un acte non signe de lui en date du 17 decembre 
1914, ledit acte figurant parmi les papiers de bord par 
lequel la H. A. L. declare lui avoir vendu la totalite de 
ses droits, propriete et interets sur le vapeur Dacia, tenir 
ledit vapeur a sa disposition pour son usage exclusif et 
propre, le garantir de toutes reclamations contre ou sur 
le navire Dacia pour quelque cause ou objet que ce soit, 
et s'engage a lui garantir que ledit navire est libre de 
toute charge, de toute nature ou espece; une copie de 
Paffidavit remis au Gouvernement des Etats-Unis prea- 
lablement a l'admission a l'enregistrement sous pavilion 
americain et par lequel Breitung declare, comme acheteur 
designe dans Facte ci-dessus, notamment que la cession 
du navire a ete faite de bonne foi, qu'elle est complete, 
sans reserve aucune ni convention de rem ere; — et, d'autre 
part, un affidavit en date du 13 mai 1915, par lequel W. 
Sickel, directeur de la H. A. L. a New- York, declare sous 
serment qu'en dehors de la vente du navire, il n'y a eu 
ni stipulation ni conventions quelconques entre la ligne 
hambourgeoise americaine, ayant rapport au transfert ou 
a rusage du navire ou la restreignant, qu'eniin la vente 



Sale. 



INTERNATIONAL LAW* DECISIONS AND NOTES. 41 

n'a pas ete faite pour eluder des consequences de l'etat 
de guerre; 

En fait: 

Considerant que le Dacia, de la H. A. L. etait avant les 
hostilities habituellement aii'ecte, d'apres le r^clamant, 
au trafic entre les ports allemands et les ports du golfe du 
Mexique; qu'en effet, il etait parti, en dernier lieu de 
Hambourg, le 17 juin 1914, pour Newport-News (Virginie, 
fitats-Unis) ; que le 28 juillet il se rendait a Port-Arthur 
(Texas), et qu'au moment de la declaration de guerre, il 
restait immobilise dans ce port, au lieu d'effectuer son 
voyage de retour- sur l'Europe ; qu'il est manifeste que le 
navire, comme un grand nombre d'autres navires de la 
meme compagnie, a ainsi subitement rompu son trafic 
pour eviter la capture; que le navire etant dans cette 
situation et restant inutilise, la H. A. L. essaya de le 
vendre ; 

Considerant que par un affidavit, en date a New- York 
(Etats-Unis) du 15 avril 1915, un sieur Egon von Novelty, 
declare sous serment que le 7 decembre 1914 il aurait 
signe et remis a W. Sickel, directeur a New- York de la 
H. A. L. un engagement ainsi concu: "Je vous fais une 
offre ferme de $165,000 pour le vapeur Dacia actuellement 
dans le port de Port-Arthur (Texas), y compris son arme- 
ment. Cette offre est subordonnee a l'obtention par 
vous de la permission du Gouvernement des Etats-Unis 
de placer le navire sous pavilion americain. J'ajoute et 
je declare sous serment que ce navire sera employe a 
transporter du cot on, ou autre marchandise de non- 
contrebande, en Allemagne ou en Autriche, ou dans 
d'autres pays neutres." 

Que W. Sickel, par un affidavit, en date a New- York 
(Etats-Unis) ~du 11 juin 1915, declare sous serment 
n'avoir jamais recu cette lettre; 

Que, quoi qu'il en soit de ces affirmations solennelles 
contradict oires, il est etabli par un document en date du 9 
decembre 1914 figurant au dossier qu'a ladite date du 9 
decembre, c'est-a-dire le surlendemain de rengagement 
conteste ci-dessus'rappele, Egon von Novelly a passe une 
convention d'affretement avec les sieurs L.-A. Wight et 
C°. representantjim ;sieur Tom B. Owens de Fort Worth 
(Texas), en^vueMu^transport par le Dacia d'une cargaison 
de coton de Galveston a Bremo et ainsi concue : 

"E. von Novelly et C° mettront a la disposition le va- 
peur Dacia, actuellement sous pavilion allemand et appar- 



42 INTERNATIONAL LAW: DECISIONS AND NOTES. 

tenant a la H. A. L., pour le transport de 11,000 balles de 
co ton de Galveston (Texas) a Br§me (Allemagne) . E. 
von Novelly et C° auront le vapeur sous enregistrement 
• du Gouvernement des Etats-Unis et sous pavilion ameri- 
cain. E. von Novelly et C° auront ledit vapeur a Galves- 
ton (Texas) au mois de decembre 1914 et garantiront 
le depart le ou avant le 15 Janvier 1915. Le navire sera 
en conditions convenables pour transporter ledit coton. 
Le navire ne sera pas assure au Gouvernement des Etats- 
Unis contre le risque de guerre, sauf pour Texcedent qu'il 
y aurait en plus de $750, 000, somme cotee par le Gouver- 
nement des Etats-Unis pour le risque.de guerre sur la 
cargaison. Fret payable a la signature des connaisse- 
ments au taux de 30 par livre. E. von Novelly et C° 
auront droit de prendre, pour leur propre compte et pour 
le compte d'autres personnes, un nombre additionnel 
de balles (n'excedant pas au total la capacite du navire) 
et ledit nombre additionnel de balles ne pr6judiciera pas 
a F assurance* des 11,000 balles de MM. Tom B. Owens et 
C°. L.-A. Wight et C° feront tous leurs efforts sans preju- 
dice pour pourvoir a F assurance, marine et guerre, du sur- 
plus des 11,000 balles. Signe: E. von Novelly et C°; 
Wight et C°, comme representants de Tom B. Owens 
et C°." 

Qu'il est egalement 6tabli que les 10 et 12 decembre 
1914, suivant une serie de contrats passes a ces dates a 
Br erne, par Tom B. Owens et C° et un sieur Harold von 
Linstow, de Breme, declarant agir pour compte de divers 
interesses allemands de cette meme place, 11,000 balles 
de coton ont ete vendues par ledit Tom B. Owens et C° 
audit Harold von Linstow pour compte, avec stipulation 
de transport direct ou indirect par le vapeur Dacia, a 
charger jusqu'au depart le 15 Janvier, chargement a effec- 
tuer par Galveston (Texas) pour Breme; ladite vente 
conclue, cout, assurance, fret, payement garanti par les 
banques allemandes " Deutsche Bank" et "Diskonto- 
Gesellschaf t " ; 

Que le 16 decembre 1914, suivant un contrat annexe a 
F affidavit du directeur de la H. A. L. du 13 mai 1915 pre- 
cite, ladite compagnie allemande, proprietaire du Dacia, 
declara a von Novelly (que tous les renseignements pro- 
duits par Breitung, 3 e memoire, p. 5, representent comme 
un "promoteur d'affaires Actives," sans aucune solva- 
bility et avec lequel aucun armateur ne pouvait serieuse- 
ment contracter) : 



INTEENATIONAL LAW. DECISIONS AND NOTES. 43 

"Par ces pr^sentes nous confirmons notre convention 
de vous vendre pour livraison immediate notre vapeur 
Dacia se trouvant a present a Port-Arthur (Texas), aux 
termes et conditions suivantes: le prix d'achat du navire 
est de $165,000, en plus le prix de revient actuel de tout 
Squipement mobile a bord, charbon, vivres et fournitures 
dont l'inventaire du tout sera fait immediatement. 
Vous devez nous verser aujourd'hui 10 p. 100 de la somme 
ci-dessus specifiee, soit 16,500 dollars; en plus vous vous 
engagez a payer le solde du prix d'achat en 7 jours de la 
date de cette lettre. En plus, il est entendu et convenu 
qui si vous echouez dans votre demande en vue d'obtenir 
Penregistrement americain pour le navire, nous vous 
rendrons toutes sommes que vous nous aurez payees." 

Que ledit contrat porte Tagrement expres de Egon von 
Novelly; qu'il est suivi d'une cession de tous droits par 
ledit von Novelly a Edward N. Breitung; 

Que dans un affidavit, en date a New- York du 22 mars 
1915, le directeur de la H. A. L. declare sous serment 
n'avoir appris que plus tard cette cession et n'avoir 
jamais recontre Edward N. Breitung ou lui avoir parle; 

Que le pretendu acte de vente, date du 17 decembre 
1914, depose entre les mains des autorites des Etats-Unis, 
mis a bord et invoque par Breitung, presente ce dernier 
comme le co-con tractant de la H. A. L., que cet acte n'est 
pas signe" de lui, ni de personne pour lui ; 

Considerant que les 16 et 21 decembre 1914, d'apres 
des documents annexes en copie a un expose fait par 
Breitung au Senat des Etats-Unis (63 e congres, 3 e ses- 
sion, Senat, doc. n° 979, p. 15), un sieur Max Breitung 
aurait remis a la banque "Guarantee Trust et C° " de 
New- York, au profit de la H. A. L., deux cheques s'elevant 
au total a $165,000; que se versement correspond, 
comme montant et comme date, au prix convenu pour le 
Dacia et stipule remboursable a defaut de transfert sous 
pavilion americain; que, d'autre part, il resulte des 
factures de Tom B. Owens, en date a Fort Worth (Texas) 
du 19 decembre 1914, et s'elevant cout, assurance et fret 
a $727,762.98; qu'a cette date Owens adressa a la 
banque dite "Guarantee Trust C " de New York, pour 
compte desdites banques allemandes "Deutsche Bank" 
et "Diskonto Gesellschaf t " ses traites en payment du 
59650—24 4 



44 INTERNATIONAL, LAW : DECISIONS AND NOTES. 

coton par lui vendu c. a. f. a Br&me et a transporter par 
le Dacia; 

Qu'Owens remit effectivement a ladite " Guarantee 
Trust C°" les factures, connaissements et polices d'assu- 
rances; que ladite banque lui aurait Verse 75 p. 100 de la 
valeur; 

Que ladite vente impliquait la transmission de la pro- 
priete de la marchandise aux acheteurs allemands des 
l'embarquement, sous reserve du droit de gage garan- 
tissant la creance de la " Guarantee Trust C°" en rem- 
boursement du prix du par les interesses allemands; 
Registration. Considerant que c'est dans ces conditions que le 4 
Janvier 1915, le Dacia, declare appartenir a Edward N. 
Breitung, fut enregistre a Port-Arthur (Texas), suivant 
certificat temporaire date desdits port et jour; que le 7 
Janvier le navire etait conduit a Galveston (Texas), ou, 
des le lendemain, il commencait a charger la cargaison 
de coton dont il a ete parle ci-dessus; que le 17 Janvier, 
intervenait entre Breitung et Owens un accord concer- 
nant notamment les delais supplementaires de charge- 
ment et les conditions du de chargement; que, le 21 
Janvier, il avait acheve son chargement; qu'a cette meme 
date une assurance contre le risque de guerre etait 
stipulee au profit de la "Guarantee Trust C°" pour 
$715,000; que le 22 Janvier etaient signes les connaisse- 
ments portant en marge la mention du fret paye d'avance, 
s'elevant au total, d'apres le manifeste de chargement, 
a la somme de $172,669, somme superieure de $7,669 a 
la valeur payee pour prix du navire, et qu'enfin, apres une 
attente de plus d'une semaine apparemment occupee, 
d'apres le livre de bord, a des envois d'odres et instruc- 
tions particulieres et, d'apres Breitung, a un retard au 
sujet du fret, le navire prenait la mer le 31 Janvier 1915 
pour aller charbonner a Norfolk, y prendre ses expedi- 
tions defintives et partir de la pour l'Europe; 

Considerant que Breitung fait remarquer dans son 
memoire, que le navire etait documente pour Rotterdam 
(Pays-Bas) et non pour Br^me; 

Mais, considerant que le manifeste de chargement 
mentionne express6ment que la cargaison etait bien pour 
Breme et que les connaissements portent 1 'indication de 
notifier l'arrivee a H. von Linstow a Breme; 

Qu'ainsi il n'est pas douteux que le voyage du Dacia 
et sa cargaison aient ete ceux prevus des le 9 decembre 



INTERNATIONAL LAW! DECISIONS AND NOTES. 45 

1914; que, des le depart du navire, Breitung etait rem- 
bourse, sous forme de fret, du prix paye par lui pour le 
navire et que le chargeur Owens etait lui-meme tout a la 
fois paye et rembourse jusqu'a concurrence de 75 p. 100 
de sa creance pour prix de la cargaison et dudit fret par 
la " Guarantee Trust C° " agissant pour compte des 
inte>esses allemands; que, par consequent, les inter^ts 
engages dans Pexpedition etaient, jusqu'a concurrence 
de 75 p. 100, des interets allemands, sauf le droit 
de privilege de la "Guarantee Trust C° " sur la 
cargaison, a raison des sommes payees par cette banque 
pour le compte des banques allemandes ci-dessus indiquees ; 

Considerant que le 27 fevrier 1915, au moment de sa 
capture, le Dacia, accomplissait done, grace a un transfer! 
sous pavilion americain, specialement obtenu a cette fin, 
le transport d'une cargaison destinee a Br6me (Alle- 
magne) en execution de conventions passees au profit 
d'int6r6ts allemands, alors que le navire etait sous 
pavilion allemand, et subordonnes a la condition que 
ledit navire serait transfere sous pavilion americain; 

En droit: 

Considerant qu'aux termes du decret du 6 novembre L ^ c ^ ratloa of 
1914 (Journal omciel, 7 novembre 1914), article l er , la 
Declaration signee a Londres, le 26 fevrier 1909, relative 
au droit de la guerre maritime, a ete declaree applicable 
durant la guerre actuelle, sous reserve de certaines addi- 
tions et modifications etrangeres a la cause; 

Qu'aux termes de ladite Declaration, article 56, "le 
transfer t sous pavilion neutre d'un navire ennemi, 
effectue* apres l'ouverture des hostilites, est nul a moins 
qu'il soit 6tabli que ce transfert n'a pas ete effectue en vue 
d'eluder les consequences qu'entraine le caractere de 



navire ennemi" 



Qu'il est reciproquement reconnu par les parties que 
e'est la la seule loi applicable dans l'espece; 

Que, d'ailleurs, la Declaration de Londres de 1909, 
n'ayant pas 6te* ratifiee, a purement et simplement la 
valeur de dispositions interieures dont 1'interpretation 
appartient au Conseil; 

Que Breitung pretend etablir que le transfert du Transferor ship. 
Dacia sous pavilion americain n'a pas ete effectue en vue 
d'eluder les consequences qu'entrainait pour lui le carac- 
t&re de navire ennemi, en alleguant l'interet serieux 
et legitime qui, selon lui, aurait motive son acquisition 



46 INTERNATIONAL LAW I DECISIONS AND NOTES. 

et resulterait des considerations, faits et documents par 
mi produits et ci-dessus rappel^s; 

Mais consid^rant que ni la nationality ni la position 
commerciale de Breitung, ni ses pretendues speculations 
non plus que le but, qu'il soutient avoir poursuivi, 
d'acquerir a un prix satisfaisant une chose dont il avait 
besoin, ne constituent dans l'espece une preuve suffisante 
que le transfert *du Dacia sous pavilion americahIP n'a 
pas ete effectue pour eviter au navire le risque de capture; 
qu'aucune de ces allegations de Breitung ne porte sur 
les conditions dans lesquelles la H. A. L., en ce qui la 
concerne elle-meme, a cherche a vendre et a vendu le 
Dacia; qu'a cet egard, la simple affirmation de son direc- 
teur selon laquelle il aurait vendu parce que le navire 
etait vieux, est une preuve insuffisante, alors qu'il est 
etabli d'autre part que le navire etait inutilise par suite 
du risque de capture et que le transfert sous pavilion 
americain a ete la condition de son affretement et de sa 
vente; 

Considerant que, d'apres le reclamant, la preuve de la 
realite et de la sincerite du transfert et l'existence d'un 
interest serieux pour l'acquereur suffiraient a rendre le 
transfert sous pavilion neutre opposable au belligerant; 

Que le reclamant invoque a cet egard une opinion 
donnee par 1 'honorable Cone Johnson, solicitor du De- 
partement d'Etat des Etats-Unis, le 7 aout 1914, d'apres 
lequel 1'article 56 de la Declaration de Londres devrait 
s 'entendre en ce sens que "la vente d'un navire belli- 
gerant a un neutre en temps de guerre est valable lorsque 
ladite vente est faite de bonne foi et depouille le vendeur 
de tous titre et interets" (63 e congres, 2 e session; Senat, 
document n° 563, p. 88) ; que selon M. Cone Johnson, la 
Declaration de Londres n 'aurait fait que "confirmer et 
consolider la position prise depuis longtemps par les 
Etats-Unis, la Grande-Bretagne et la plupart des autres 
nations mari times, excepte en ce qui concerne le fardeau 
de la preuve de la bonne foi d 'un tel transfert fait pendant 
la duree de la guerre. C'est la bonne foi de la vente qui 
est 1 'essence d'un transfert valable et on ne peut pas 
decouvrir que les motifs ulterieurs qui ont pu pousser 
les parties a faire ce transfert aient une action sur cette 
validite, quoique, bien entendu, ces motifs puissent tres 
bien avoir ete les avantages qui vont tout naturellement 
rSsulter du fait que le navire arborera un pavilion neutre 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 47 

au lieu du pavilion de son pays qui est en guerre. Si le 
transfert est de bonne foi sans contre-lettre, ou resulte 
de propriete ou int6r&t sans aucune convention que le 
navire sera retransfere a la fin des hostilites et sans 
autre signe d'un transfert simule ou fictif, s'il ne s'agit 
pas d'un navire dans un port bloque ou en cours de 
route, le transfert est valable d'apres le droit interna- 
tion|[ comme il Test d'apres la Convention de Londres, 
quoique les motifs ulterieurs du vendeur et de l'acheteur 
puissent tres bien avoir ete* les avantages naturels du 
fait d'arborer le pavilion d'un Etat en paix." 

Mais, considerant que si, lors des travaux preparatories 
de Particle 56 de la Declaration de Londres, certaines 
propositions avaient ete faites tendant a subordonner 
uniquement a la bonne foi la validite des transferts de 
pavilion au regard des belligerants, une divergence de 
vue s'etait manifested au sujet de la signification du 
terme " bonne foi" propose comme criterium de la vali- 
dite; que la delegation des Etats-Unis paraissait admettre 
que la bonne foi existait si le contrat relatif au trans- 
fert 6tait sincere et definitif et ne comportait rien de 
fictif ou d'irregulier; tandis que les propositions allemande 
et britannique entendaient par bonne foi 1 'absence 
parmi les motifs du transfert, de 1 'intention de soustraire 
le navire a l'effet du droit de capture; qu'a cet egard, 
d'apres ces propositions, comme d'apres le texte ori- 
ginal propose a 1 J adoption de la Conference navale de 
Londres sous le n° 35 des bases de discussion, le transfert 
ne pouvait 6tre reconnu valable que s'il y avait lieu de 
croire qu'il aurait ete aussi bien effectue si la guerre 
n'6tait pas survenue (Bl. Book, p. 183 et 260); 

Que c'est dans ce dernier sens que se sont prononces 
les redacteurs de la Declaration de Londres en adoptant 
le texte de ladite base de discussion, tout en mentionnant 
la possibility de la preuve contraire, sauf dans certains 
cas sans inter ^t dans 1 'affaire actuelle; 

Que le rapport, presents a la Conference a Pappui des 
dispositions devenues notamment Particle 56 de la 
Declaration, explique clairement que le transfert oppo- 
sable aux belligerants est celui qui n'a pas ete motive par 
le fait m6me de la guerre (Bl. Book. p. 326 et p. 212), 
mais, par exemple, par heritage; 

Que cette maniere de voir a 6te adoptee par la legisla- re^TioSs prLM 
tion allemande (Prisenordnung du 30 septembre 1909. 



48 [INTERNATIONAL J.AW I DECISIONS AND NOTES. 

Chap. II, art. 12° Reichsgesetzblatt du 3, VIII, 14), 
d'apres laquelle le transfert n'est opposable que si le 
capteur a acquis la conviction "que le transfert aurait 
eu egalement lieu si la guerre n'avait pas delate, par 
exemple.par suite d 'heritage ou de contrat de construc- 
tion"; — par la legislation autrichienne (Dienst-Reglement 
fur die K. u. K. Kriegs-Marine du 2. V. 13; 3 art. Ill), 
laquelle reproduit purement et simplement le texie de 
Particle 56 de la Declaration de Londres; — par la legis- 
lation russe (Reglement sur les prises du 27 mars 1895, 
art. 7), d'apres laquelle la preuve doit etre faite que le 
transfert n'a pas eu pour objet de proteger la propriete 
ennemie; — par la legislation britannique, qui a rendu 
applicable au cours de la guerre la Declaration de Londres 
dans les m&oies termes que le decret francais du 6 novem- 
bre 1914 precite (Order in Council du 29 octobre 1914) ; — 
par la jurisprudence et par la legislation italiennes (decret 
du 3 juin 1911, Gaz. Uff. n° 150, du 15 juin 1915); 

Que, aussi bien, comme l'a fait remarquer, en 1912, 
la Commission italienne des Prises (Atti della R e eom- 
missione d. Prede; Guerra italo-turca, col. I, p. 197; 
aff. du Aghios Georghios 12 mai 1912), a si la capture 
est la sanction par laquelle le belligerent interdit aux 
navires marchands ennemis l'usage de la mer, il s'ensuit 
que Facte quel qu'il soit, meme motive par un interet 
legitime, tendant immediatement a soustraire le navire 
ennemi a cette sanction, ne peut etre considere par le 
belligerant que comme fait en fraude de son droit et 
par consequent mil"; 

Considerant qu'en adoptant l'article 56 de la Decla- 
ration de Londres, tel que, dans l'opinion de ce Conseil, 
il doit §tre entendu et, en consentant momentanement 
a ne pas appliquer les prescriptions seculaires de l'or- 
donnance du 26 juillet 1778, edictees en vue de l'as- 
sistance a preter aux Etats-Unis dans l'inter^t de la 
liberte et express ement maintenues en vigueur par 
l'arr^te du 29 frimaire an VIII, le Gouvernement de la 
Republique n'a done fait que suivre les vues et les 
pratiques les plus gen6ralement admises; 

Que l'opinion exprimee par l'honorable Cone Johnson 
(que lui-meme a reconnu avoir ete redigee en hate sans 
qu'il ait eu le temps ou la possibilite de la corriger et 
qui a fait l'objet des plus vives contestations au Senat des 
Etats-Unis, notamment a la seance du 25 Janvier 1915) 



INTERNATIONAL LAW : DECISIONS AND NOTES. 49 

doit 6tre regardee comme un plaidoyer en faveur de 
certains interests, mais non, ainsi que le soutient Edward 
N. Breitung, comme le commentaire officiel de la De- 
claration de Londres; 

Que, dans l'espece, outre le singulier caractere de 
Facte de vente, trouve a bord et pretendu passe le 17 
ou 19 decembre 1914 par la Compagnie XL A. L. et 
Breifcung, qui ne Pa pas signe, ni personne pour lui ; 
avec qui le directeur de ladite compagnie reconnait 
n'avoir pas traite et qu'il declare n'avoir jamais ren- 
contre — m6me en admettant la regularity de l'acquisition 
du Dacia par Breitung — meme en supposant la r^alite 
de la cession du navire par la compagnie H. A. L. a 
Egon von Novelly, puis par celui-ci a Breitung — il est 
6tabli que, non seulement, comme il a ete releve dans 
d'autres affaires analogues (affaire du Jemmy en Angle- 
terre, 17 juillet 1801, VI Rob. 31; I English Prize Cases, 
331; affaire du Benito Estanger, aux Etats-Unis, 5 
mars 1900, U. S. Rep. 176, p. 568; Story, Notes on the 
principles and practice of Prize Courts, publie par Pratt 
1854, p. 63), le navire avait, apres son transfert, "con- 
tinue comme par le passe son commerce avec Pennemi", 
mais encore qu'il effectuait, au moment de la capture, 
le voyage meme pour lequel il avait ete affrete alors 
qu'il etait sous pavilion allemand et en vue du quel il 
avait ete transf 6re sous pavilion neutre ; 

Qu'un semblable transfert sous pavilion neutre, ayant 
eu pour objet de permettre un trafic ennemi et de sous- 
traire le navire a la capture, ne saurait 6tre opposable 
aux belligerants ; 

Considerant que le Conseil est uniquement saisi de la 
validite de la capture du navire et, par consequent, n'a 
pas a se prononcer en ce qui concerne la cargaison, 

Decide : 

Est declaree bonne et valable la capture du vapeur Decision. 
Dacia, ensemble ses agres, apparaux, armement et 
approvisionnements de toute nature, effectuee le 27 
fevrier 1915 par le croiseur auxiiiaire de la Republique 
Europe, pour le prix en etre attribue aux ay ants droit 
conform ement aux lois et reglements en vigueur; 

Seront restitues aux ayants droits les objets et effets, 
propriete personnelle du capitaine et de P equipage, et 
ne constituant pas des articles de contrebande. 



50 INTERNATIONAL LAW I DECISIONS AND NOTES. 

Deliber6 a Paris, dans les seances des 3 et 5 aout 1915, 
oil siegeaient: MM. Mayniel, president; Rene Worms, 
Rouchon-Mazerat, Gauthier, Lefevre et Fromageot, 
membres du Conseil, en presence de M. Chardenet, 
commaissaire du Gouvernement. 

En foi de quoi, la presente decision a ete signee par 
le President, le Rapporteur et le Secretaire-greffier. 
Signe a la minute : • 

E. Mayniel, president. 
Henri Fromageot, rapporteur; 
G. Raab d'Oerry, secretaire-greffier. 
Pour expedition conforme: 
Le Secretaire-greffier, 
G. Raab d'Oerry. 
Vu par nous, Commissaire du Gouvernement, 

P. Chardenet. 



THE "KIM," THE "ALFRED NOBEL," THE "BJORNSTERJNE 
BJORNSON," THE "FRIDLAND." 

IN THE HIGH COURT OF JUSTICE. 

PROBATE, DIVORCE, AND ADMIRALTY DIVISION. 

ADMIRALTY. 
[In Prize.] 

July 12-Sept. 16, 1915. 

[1915] P. 215. 

^statement of September 16. The President (Sir Samuel Evans). 
The cargoes which have been seized, and which are 
claiAed in these proceedings, were laden on four steam- 
ships belonging to neutral owners, and were under time 
charters to an American corporation, the Gans Steam- 
ship Line. John H. Gans, the president of the company, 
is a German. He has resided in America for some 
years; but he has not been naturalized. The general 
agent of the company in Europe was one Wolenburg, 
of Hamburg. 

The four ships were the Alfred Nobel (Norwegian), 
the Bjornsterjne Bjornson (Norwegian), the Fridland 
(Swedish), and the Kim (Norwegian). They all started 
within a period of three weeks in October and November, 
1914, on voyages from New York to Copenhagen with 
very large cargoes of lard, hog and meat products, oil 
stocks, wheat and other foodstuffs; two of them had 
cargoes of rubber, and one of hides. They were captured 



INTERNATIONAL LAW: DECISIONS AND NOTES. 51 

on the high seas, and their cargoes were seized on. the 
ground that they were conditional contraband, alleged 
to be confiscable in the circumstances, with the exception 
of one cargo of rubber which was seized as absolute 
contraband. 

The court is now asked to deal only with the cargoes. 
All questions relating to the capture and confiscability 
of the ships are left over to be argued and dealt with 
hereafter. 

It is necessary to note the various dates of sailing and 
capture. 

They are as follows : 

Date of sailing . Date of capture. 

Alfred Nobel, October 20, 1914 November 5, 1914. 

B. Bjornson, October 27, 1914 November 11, 1914. 

Fridland, October 28, 1914 November 10, 1914. 

Kim, November 11, 1914 November 28, 1914. 

Upon some of these dates may depend questions touch- 
ing what orders in council are applicable. One order in 
council adopting with modifications the provisions of the 
convention known as the " Declaration of London " was 
promulgated on August 20, 1914, and another on Octo- 
ber 29, 1914. Proclamations as to contraband, absolute 
and conditional, were issued on August 4, September 21, 
and October 29, 1914. 

It is useful to note here, in order to avoid any possible 
misconception or confusion, that the later order in council 
of March 11, 1915 (sometimes called the reprisals order), 
does not affect the present cases in any way. 

Before proceeding to state the result of the examina- 
tion of the facts relative to the respective cargoes and 
claims, a general review may be made of the situation 
which led up to the dispatch of the four ships with their 
cargoes to a Danish port. 

Notwithstanding the state of war, there was no dim- T l ade w * th 

° ; northern ports. 

culty in the way of neutral ships trading to German ports 
in the North Sea, other than the perils which Germany 
herself had created by the indiscriminate laying and 
scattering of mines of all description, unanchored and 
floating outside territorial waters in the open sea in the 
way of the routes of maritime trade, in defiance of inter- 
national law and the rules of conduct of naval warfare, 
and in flagrant violation of The Hague convention to 
which Germany was a party. Apart from these dangers, 
neutral vessels could have, in the exercise of their inter- 
national right, vo3^aged with their goods to and from 



52 INTERNATIONAL LAW I DECISIONS AND NOTES. 

Hamburg, Bremen, Emden, and any other ports of the 
German Empire. There was no blockade involving risk 
of confiscation of vessels running or attempting to run it. 
Neutral vessels might have carried conditional and 
absolute contraband into those ports, acting again 
within their rights under international law, subject only 
to the risk of capture by vigilant warships of this country 
and its allies. But the trade of neutrals — other than the 
Scandinavian countries and Holland — with German 
ports in the North Sea having been rendered so difficult 
as to become to all intents impossible, it is not surprising 
that a great part of it should be deflected to Scandina- 
vian ports, from which access to the German ports in the 
Baltic and to inland Germany by overland routes was 
available, and that this deflection resulted, the facts 
universally known strongly testify. The neutral trade 
concerned in the present cases is that of the United 
States of America; and the transactions which have to 
be scrutinized arose from a trading, either real and bona 
fide, or pretended and ostensible only, with Denmark, 
in the course of which these vessels' sea voyages were 
made between New York and Copenhagen. 

Denmark is a country with a small population of less 
than three millions; and is of course, as regards food 
stuffs, an exporting, and not an importing, country. Its 
situation, however, renders it convenient to transport 
goods from its territory to German ports and places like 
Hamburg, Altona, Lubeck, Stettin, and Berlin, 
cargoes. ^^q total cargoes in the four captured ships bound for 

Copenhagen within about three weeks amounted to 
73,237,796 pounds in weight. (These weights and other 
weights which will be given are gross weights according 
to the ships' manifests.) Portions of these cargoes have 
been released, and other portions remain unclaimed. 
The quantity of goods claimed in these proceedings is 
very large. Altogether, the claims cover 32,312,479 
pounds (exclusive of the rubber and hides). The claim- 
ants did not supply any information as to the quantities 
of similar products which they had supplied or con- 
signed to Denmark previous to the war. Some illustra- 
tive statistics were given by the Crown, with regard to 
lard of various qualities, which are not without signifi- 
cance, and which form a fair criterion of the imports of 
these and like substances into Denmark before the war; 
and they give a measure for comparison with the imports 



INTERNATIONAL LAW : DECISIONS AND NOTES. 53 

of lard consigned to Copenhagen after the outbreak of 
war upon the four vessels now before the court. 

The average annual quantity of lard imported into 
Denmark during the three years 1911-1913 from all 
sources was 1,459,000 pounds. The quantity of lard 
consigned to Copenhagen on these four ships alone was 
19,252,000 pounds. Comparing these quantities, the 
result is that these vessels were carrying toward Copen- 
hagen within less than a month more than thirteen times 
the quantity of lard which had been imported annually 
to Denmark for each of the three years before the war. 

To illustrate further the change effected by the war, C o££2£ f . war °" 
it was given in evidence that the imports of lard from the 
United States of America to Scandinavia (or, more 
accurately, to parts of Europe other than the United 
Kingdom, France, Belgium, Germany, the Netherlands, 
and Italy) during the months of October and November, 
1914, amounted to 50,647,849 pounds as compared with 
854,856 pounds for the same months in 1913 — showing 
an increase for the two months of 49,792,993 pounds; or 
in other words the imports during those two months in 
1914 were nearly sixty times those for the corresponding 
months of 1913. 

One more illustration may be given from statistics 
which were given in evidence for one of the claimants 
(Hammond & Co. and Swift & Co.) : In the five months 
August-December, 1913, the exports of lard from the 
United States of America to Germany were 68,664,975 
pounds. During the same five months in 1914 they had 
fallen to a mere nominal quantity, 23,800 pounds. On ^gjjljce M to 
the other hand, during those periods, similar exports 
from the United States of America to Scandinavian 
countries (including Malta and Gibraltar, which would 
not materially affect the comparison) rose from 2,125,579 
pounds to 59,694,447 pounds. These facts give practical 
certainty to the inference that an overwhelming propor- 
tion (so overwhelming as to amount to almost the whole) 
of the consignments of lard in the four vessels we are 
dealing with was intended for, or would find its way into, 
Germany. These, however, are general considerations, 
important to bear in mind in their appropriate place; 
but not in any sense conclusive upon the serious questions 
of consecutive voyages of hostile quality, and of hostile 
destination, which are involved before it can be deter- 
mined whether the goods seized are confiscable as prize. 



54 INTERNATIONAL LAW! DECISIONS AND NOTES. 

The dates of sailing and capture have been given with 
an intimation that they may have a bearing upon the law 
applicable to the cases. 

The Alfred Nobel, the Bjomsterjne Bjornson, and the 
Fridland started on their voyages in the interval between 
the making of the two orders in council of August 20 
and October 29. The Kim commenced her voyage 
after the latter order came into force. 

By the proclamation of August 4 all the goods now 
claimed (other than the rubber and the hides) were 
declared to be conditional contraband. The cargoes 
of rubber seized were laden on the Fridland and the Kim. 
Rubber was declared conditional contraband on Septem- 
ber 21, 1914, and absolute contraband on October 29. 
Accordingly the rubber on the Fridland was conditional 
contraband ; and that on the Kim was absolute contraband. 

The hides were laden on the Kim. Hides were declared 
conditional contraband on September 21, 1914. No 
contention was made on behalf of the claimants that the 
goods were not to be regarded as conditional or absolute 
contraband, in accordance with the respective proclama- 
tions affecting them ; that is to say, it was admitted that 
the goods partook of the character of conditional or 
absolute contraband under the said proclamations, and 
were to be dealt with accordingly. 
siupfandea^goe* The law can best be discussed and can only be applied 
after ascertaining the facts. The details relating to the 
ships and their cargoes which it has been necessary to 
examine are very voluminous. I must try to summarize 
them for the purposes of this judgment, in order to make 
it intelligible in principle, and in the results. To attempt 
to give even a moderate proportion of the details would 
tend to bewildering confusion. 

The number of separate bills of lading covering the 
cargoes on the four vessels is about 625. 

Four large American firms were consignors of goods on 
each of the four vessels; and a fifth on two of them. 

According to the figures given to the court, those five 
American firms were consignors of lard and meat products 
to the following extent : 

Pounds. 

Armour & Co 9, 677, 978 

Morris & Co. (with Stern & Co.) 6, 868, 233 

Hammond & Co. (with Swift & Co.) 3, 397, 005 

Sulzberger and Sons Co 2, 602, 009 

Cudahy & Co 729, 379 

This makes up a total of 23, 274, 584 



INTERNATIONAL LAW! DECISIONS AND NOTES. 55 

These figures I accept as substantially correct. They 
were given by the law officers of the Crown. The other 
figures in my judgment I am responsible for. 

Those portions of the cargoes which have been released, 
and those which have not been claimed, will be dealt with 
in a separate judgment. There is some overlapping, as 
some parts of the cargoes have been claimed by the con- 
signors, and also by some alleged vendees. For these and 
other reasons some corrections in the figures which follow 
may become necessary; but they are substantially correct 
as they stand in the various documents, and as they were 
dealt with at the hearing; and certainly sufficiently accu- 
rate for the purpose of determining all questions relating 
to the rights of the Crown to condemnation, or of the 
various claimants to release. 

An analysis of the claims shows the following results : 

I. Morris & Co. (with Stern & Co.). 

Direct claims by these companies to goods laden on the Pounds, 
four ships amounting to 5, 176, 327 

Other subclaims by claimants who allege that they had 
bought and had become owners of goods consigned by the 
above companies : 

(1) Pay & Co. — Goods on the A. Nobel and the B. Pounds. 

Bjornson 411, 600 

(2) Christensen and Thoegersen — Goods on the A. 

Nobel and the B. Bjornson 110, 428 

(3) Brodr Levy — Goods on the A. Nobel, the B. 

Bjornson, and the Kirn 132, 036 

(4) J. O. Hansen — Goods on the B. Bjornson, Frid- 

land, and Kim 196, 873 

(5) Segelcke — Goods on the B. Bjornson and the 

Kim 275, 297 

(6) Pedersen — Goods on the B. Bjornson 45, 219 

(7) Henriques and Zoydner — Goods on the B. 

Bjornson 81, 096 

(8) Korsor Margarin Fabrik — Goods on the Fridland 

and the Kim 26, 639 

(9) Margarin Fabrik Dania — Goods on the Fridland. 9, 004 
ttO) Erik Valeur— Goods on the Kim 106, 155 

1, 394, 407 

Total 6, 570, 734 

[The detailed statement of other claims is omitted.] 

It will be convenient to investigate the cases of these 
shippers first in this order, both as regards the Alfred 
Nobel and the other three steamers, upon all of which 
these two companies were heavy consignors. 



56 INTERNATIONAL LAW : DECISIONS AND NOTES. 

AS TO MORRIS & CO.'s CLAIM. 

This meat-packing company of Chicago and New York 
at the beginning of the war had a large business with 
Germany, which they carried on, at the Europe end, at 
Hamburg. They had in their employ at Hamburg two 
persons named McCann and Fry. Fry was their manager. 
»gents. r ° p e a n They appear to have had an agent also at Copenhagen of 
the name of Conrad Bang. The transactions relating to 
their shipments of between six-and-a-half and seven 
million pounds of products on the four vessels were carried 
through by McCann and Fry, and not by Bang. Not 
long after the war began McCann and Fry left Hamburg 
and took up their quarters at Copenhagen. McCann was 
named in hundreds of the bills of lading in which Morris 
& Co. were the shippers as the "party to be notified. " 
He was so named in all, with a few exceptions which are 
insignificant. 

He had no business at Copenhagen or in Denmark before 
the war. He had apparently no office in Copenhagen. 
His address was " the Bristol Hotel." 

The instructions to him from Morris & Co. as to the 
change from Hamburg to Copenhagen, and as to the 
initiation and progress of the business transactions carried 
on either at or through Copenhagen, must have been in 
writing unless he visited America, or some one from 
America visited him. No such instructions were pro- 
duced in evidence and no explanation was given of them. 
Not a single letter passing between Morris & Co. and 
McCann or Fry was produced. A few telegrams were in 
evidence, but that was due to their having been inter- 
intercepted tei- ce pted by the British censor and they were put before 
the court by the procurator general. McCann did not 
even make an affidavit in explanation of his own part of 
the transactions. Nor did Fry. Affidavits from them, if 
they comprised a complete and truthful statement of the 
facts within their knowledge, would have been of value 
and assistance to the court. 

On November 28 McCann and Fry together formed a 
company in Copenhagen under the name of the "Dansk 
Fed. Import Kompagnie." Its capital was only about 
1201. (2,000 kronen) ; but it imported lard and meat by 
the end of the year (i.e., in about five weeks) to the value 
of about 280,0001. (5,000,000 kronen) . Later on, McCann 
is cabling from Copenhagen to Morris & Co. in New York, 
" Don't ship any lard Copenhagen, export prohibited. " 



INTERNATIONAL, LAW! DECISIONS AND NOTES. 57 

Afterwards, goods like lard and fat backs were con- 
signed by Morris & Co. to Genoa — Italy had not then 
joined in the war. 

The evidence put forward in support of the direct claim 
of Morris & Co. was an affidavit of Mr. Harry A. Timmins, 
which was sworn in Chicago on May 27, 1915. Mr. 
Timmins is the assistant secretary and treasurer of the 
company. The case which he there makes is that the 
goods had been sent to Copenhagen in the ordinary course 
of the business of the company in Denmark itself. 

It is advisable to set out the main paragraphs verbatim : 

"2. The claimant (Morris & Co.) has for many years 
shipped considerable quantities of its products to I> en " ev wence. * C °' s 
mark, both directly to Copenhagen and through adjacent 
branch houses. The sale of such products for several 
years was made either through the Morris Packing Com- 
pany, a corporation of Norway, or an individual salaried 
employee of the claimant. Said Morris Packing Com- 
pany or said salaried individual employee of claimant 
always had strict instructions from the claimant to con- 
fine sales to Denmark, Scandinavian countries, and Rus- 
sia, and not to sell to any other countries owing to the fact 
that the claimant has agents in other countries, and it is 
essential that said agent's operations be strictly confined 
to his own district. 

"4. In the month of October, 1914, the claimant 
shipped on board the Norwegian steamship Alfred Nobel 
[the paragraphs in the affidavits relating to the other 
three steamships are identical] the goods particulars of 
which are set out in the schedule to this affidavit. The 
whole of said goods was shipped 'to order' Morris & Com- 
pany, notify claimant's agent in Copenhagen (said agent 
being a native-born citizen of the United States of Amer- 
ica) for sale on consignment in the agent's own district in 
the ordinary course of business. The standing instruc- 
tions to the agent that no sales were to be made outside 
the agent's district were never withdrawn by the claim- 
ant." 

The deponent refrains from giving any particulars or 
even summaries of the "considerable" quantities of the 
company's products shipped to Copenhagen or Denmark 
for the years before the war; he does not even say what 
the " products" shipped were; but the impression clearly 
intended to be produced was that the goods on the four 
ships in question were sent in the Denmark business, and 



58 INTERNATIONAL LAW : DECISIONS AND NOTES. 

were not to be sold by the " salaried employee " or " agent" 
in other countries " outside the agent's district." 

There is no reference to any German market to be 
supplied from Denmark. Germany is not even men- 
tioned. 

The " agent" in Copenhagen is carefully described as 
"a native-born citizen of the United States of America," 
but otherwise he is left shrouded in anonymity. Mr. 
McCann was his name. His collaborator, Fry, is not 
mentioned. Nor is the company (the Dansk Fed. Kom- 
pagnie) which they formed in November, 1914, disclosed. 
For aught the affidavit says or suggests, the business at- 
tentions of Mr. McCann might have been confined for 
many years before the war to the comparatively humble 
and quiet Danish or Scandinavian district of the claim- 
ant's business. His and Fry's real business activity up to 
October, 1914 (we now know), was in the great center of 
Hamburg. 

The solicitors for the claimants had been instructed 
soon after the seizure to put forward the same kind of 
case, although more limited, because the authority was 
then said to be to sell only in Denmark to the exclusion 
of the rest of Scandinavia and Russia; for in a letter to 
the procurator general in December, 1914, they wrote: 
"The duty of the consignor's representative in Copen- 
hagen was to sell only for delivery in Copenhagen against 
cash (except as to 800 tierces of lard shown in the table 
set out in our letter to you of the 11th inst. which were 
going to Christiania) and it was never the intention of the 
consignor's agent, nor had he any authority, to reship 
the goods from Copenhagen to another port." When Mr. 
Timmins swore his affidavit, that of the procurator gen- 
eral had not been filed, and Mr. Timmins had probably 
little or no idea of the information which had been 
gleaned for the Crown by the intercepted telegrams, let- 
ters, and otherwise. No further affidavit has been made 
by Mr. Timmins or any one else on behalf of these claim- 
ants, and no attempt has been made to deal with the 
materials which raise suspicion, or to elucidate circum- 
stances involving doubt, in relation to the bona fides of 
the transactions and claim. Not a single original book of 
account, letter book, or any other of the usual commercial 
documents which must have been kept by or for Mr. 
McCann in Copenhagen has been produced. 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 59 

This court has on various occasions during the present erJ^SJ? 91 ** 1 let * 
war pointed out the importance of producing original 
documents fully and promptly when a claim is made, and 
particularly where the bona fides of the claim is put in • 
question. In the circumstances I say without hesitation 
that the bare account given of the transactions in Mr. 
Timmins's affidavit is not only wholly insufficient, but is 
also disingenuous and misleading. The picture exhib- 
ited of the ordinary regular Danish trade carried on by 
Morris & Co., through Mr. McCann, is marred when 
alongside of it is seen the shipment and transport toward a iS££t^?U f ^ 
Copenhagen by this company of lard and meat products 
in less than a month more than quadrupling the annual 
quantity imported into Denmark from all sources for a 
year on the average of three years before the war. 

In a letter dated November 25 in the "Ascher" corre- 
spondence (hereinafter referred to in connection with the 
claim of Cudahy & Co.), a firm of dealers in Hamburg 
well acquainted with the trade wrote from Hamburg: 
"We met Mr. McCann of the Morris Provision Company 
on 'change to-day [that was at Hamburg] back from 
Copenhagen. He was very sceptical with regard to the 
Alfred Nobel affair, and rather inclined to the opinion 
that the provisions on board of that steamer would never 
be allowed to reach Copenhagen, because it was too open- 
faced a case of the lard being intended for Germany to 
expect any other result. " This was disclosed to the 
claimants a couple of months before the conclusion of the 
trial, but they did not deem it necessary, or perhaps expe- 
dient, to trouble themselves to contradict or explain the 
statement. The only way it was dealt with at the trial 
was by their counsel submitting that the letter was not 
evidence. I will deal with this question later, when the 
correspondence will be more fully referred to. 

From other parts of the case it is shown that one Erik 
Valeur also claimed to be an agent of Morris & Co. for 
Denmark, and to have acted as such in the sale of con- 
siderable quantities of the goods shipped on these vessels 
by Morris & Co. I will for convenience deal with this 
subject when I come to Valeur's claim. I note this be- 
cause the facts which will be there referred to have a 
bearing also upon the claim of Morris & Co. and also on 
their statement that their sole agent in Denmark was 
Mr. McCann. 

59650—24 5 



60 INTERNATIONAL LAW I DECISIONS AND NOTES. 

exports bition ° f ^ have already referred to a cablegram dispatched by 
McCann from Copenhagen to Morris & Co., at New York, 
on January 24, 1915. " Don't ship any lard Copenhagen, 
export prohibited." The export had been prohibited by 
the Danish Government on January 11. 

This cablegram was of course subsequent in date to the 
seizure of the cargoes in these cases. Nevertheless it is 
neither immaterial nor unimportant. It testifies clearly 
to two things: That lard was not required by or for Den- 
mark, and that the previous importation into Copen- 
hagen was in the main, at any rate, a mere stage in its 
passage into Germany. 

In connection with the prohibition against exportation 
of foodstuffs it is well known, as a matter of public repu- 
tation, that in order to avoid international difficulties the 
Scandinavian countries as neutrals, from good political 
motives, issued orders from time to time, prohibiting the 
export from the respective countries of goods like lard, 
smoked meat, and other foodstuffs, oleo stock, hides, and 
rubber. For details of such prohibitions reference may 
be made to the affidavit of Mr. Henry Fountain, of the 
British Board of Trade, sworn on June 1, 1915. 

These are matters also which tend to throw light upon 
the question of the real destination of the goods nominally 
consigned to Copenhagen; and the court is entitled to 
take them into consideration and to place them in the 
scales when weighing all the evidence. 

In the course of the trial, upon the facts which had 
then been given in evidence, I addressed some questions 
to Mr. Leslie Scott, counsel for Morris & Co. I asked 
him whether in respect of the foodstuffs which Morris & 
Co. consigned to their own order, or to that of their agent 
at Copenhagen, and not to any independent consignee, 
he contended that they were "intended for a Danish 
market or for the German market." 

His answer was: "My submission is that there is no 
evidence as to which they were intended for in regard to 
any specific consignment, but that it was expected that 
the great bulk would find its way to Germany ultimately 
is obvious." And that it was so expected by his clients, 
he said, was obvious. 

Then I observed: "In other words, those snoods would 
not have been sent to Denmark if the Germans were not 
close by?" and Mr. Scott answered, "That is obvious." 



Destination. 



INTERNATIONAL LAW : DECISIONS AND NOTES. 61 

I then asked for information as to any merchant or 
person in Germany with whom Morris & Co. were in 
communication with reference to the shipments in ques- 
tion, which they expected would find their way into 
Germany. 

The answer of their counsel was as follows. I will 
give the exact words, because there was some discussion 
as to what was said: 

"It must depend upon the facts, as to which I have no 
instructions or evidence. The position seems a fairly 
clear one — that before the war, Hamburg, of course, was 
the great center of importation, not only for Germany, 
but for Denmark, and also probably largely for Norway 
and Sweden. Hamburg is the great free port of north- 
ern Europe, and the bulk of the American foodstuffs 
went there, as your lordship sees from the figures which 
were given in consequence of your question. After the 
war, and importation with that port stopping, two re- 
sults happened — one was that the German demand for 
the civil population as before the war has to be met, 
and the neutral country, the United States, in the ordi- 
nary course of business, sets out to supply that demand. 
The second point is that the supply of Denmark and the 
other Scandinavian countries has to be met; but the 
particular importing ports of Germany being closed, the 
difference is that the great stream oi produce going to 
Germany and the three Scandinavian countries goes to 
Scandinavian ports. Before the war, in the case of 
Morris & Co., they had agents in Germany. On the war 
breaking out, it is no use the agents remaining in 
Germany, but they go to Denmark. Mr. McCann goes to 
Denmark, and there is no question about that. They 
receive the consignments. That they should not be in 
communication at all with Germany and German buy- 
ers under those circumstances is obviously a ridiculous 
idea. No one would imagine it, and I do not suppose, 
apart altogether from any evidence in the case, that 
your lordship, dealing with inferences of fact, would 
come to the conclusion that the representatives of Morris 
in Denmark were not in communication with anyone in 
Germany. I am not here to put forward that sugges- 
tion." 

At a later stage the learned counsel said: "It may be 
perfectly true that [the shippers] may have thought that 
the whole was intended — we know that the whole was not 



62 INTERNATIONAL LAW I DECISIONS AND NOTES. 

intended — for German consumption. I have never dis- 
puted it. I have always said the market through Copen- 
hagen was Germany." 

In connection with these statements, it is important 
to emphasize the point, which has already been adverted 
to, that the claimants, and McCann their representative, 
did not give the court any information — all of which was 
within their power to give — as to the arrangements made 
for sending the " great bulk," or the " greater part," of 
the cargoes to Germany; as to who were the consignees, 
or the intended consignees ; or as to what ports or places 
in Germany the cargoes were intended or expected to 
be sent. 

In the course of a discussion at the trial (more particu- 
larly to be referred to in Armour's case) counsel for 
Morris & Co. expressed his readiness to produce evidence 
as to the amount of lard, bacon, and other products of 
the kind in question which Morris & Co. had supplied to 
Germany during the two or three years before the war. 

No such evidence has since been produced, although 
any necessary adjournment for the purpose was offered. 

Before concluding the statement of facts as to Morris 
& Co., two other matters have to be mentioned. 

The first is that Stern & Co., in whose name certain 
goods were shipped, is a subsidiary company of Morris & 
Co., and the case of Stern & Co., by the request of counsel, 
was taken with Morris's claim, and treated as identical 
with it. The second is that the claims of ten claimants 
to certain parcels of goods shipped by Morris & Co. who 
allege they were owners of such goods as purchasers from 
the shippers will have to be dealt with; and that facts 
affecting Morris & Co.'s position relating to those sub- 
claims must be taken as supplemental to those already 

adverted to in dealing with their direct claim. 

The legal questions which arise with regard to the real 

destination of the goods claimed by Morris & Co. are 
identical with those arising in other claims. 

I will deal with these legal questions after the examina- 
tion of the facts in all the cases. 

AS TO ARMOUR & CO. ? S CLAIM. 

a e^u r o p e a a This American company had before the war a subsid- 
iary company — Armour & Co., Aktieselskab — at Copen- 
hagen acting as agents. These agents (it is said) had 
always had strict instructions from the claimants to con- 



INTERNATIONAL, LAW I DECISIONS AND NOTES. 63 

fine their sales to Denmark, other Scandinavian countries, 
Finland, and Russia, and not to sell to any other coun- 
tries, as the claimants had agents in other countries and 
the operations of each agent were to be strictly confined 
to his particular district. 

The Copenhagen office was a small one; the staff con- 
sisted of a manager, clerk, office boy, and typist, according 
to the evidence of the procurator general; or of a manager, 
assistant salesman, chief accountant, assistant account- 
ant, and office boy, according to the affidavit of Mr. 
Urion. 

Before the war, the claimants' principal branch was at 
Frankfort, where their German business was carried on. 

No information was given by the claimants as to what 
became of, or as to what was done at, this branch after 
the war. 

As to the Copenhagen office, not even the name of the 
manager was given to the court. No one from Copen- 
hagen favored the court with any evidence as to the 
extensive transactions involved in the shipments by these 
claimants. 

Armour & Co.'s direct claim is to nearly eight million 
pounds of foodstuffs. When the amounts of their alleged 
vendees' claims are added, the total is over nine and a 
half million pounds. This enormous quantity was con- 
signed to their agents at Copenhagen within one month. 
How came it to be sent ? What were the instructions of 
the anonymous manager at the Copenhagen office with 
regard to its disposal ? With the exception of compara- 
tively small quantities of casings, canned beef, and fat- 
backs, it was all lard of various qualities. The average 
monthly quantity of lard exported from the United States 
to all Scandinavia in October and November, 1913, was 
427,428 pounds; a year later, in about three weeks (from 
October 20 to November 11, 1914), it is shown that this 
one company was shipping to Copenhagen alone consid- 
erably over twenty times that quantity. 

It was deposed by the procurator general that Armour m j£S eased ship " 
& Co.'s shipments to Copenhagen of hog products from 
October to December, 1914, were approximately equiva- 
lent to their total shipments to Copenhagen during the 
whole preceding eight years. These figures were not con- 
tradicted or contested. In the course of the hearing an 
opportunity was given to the claimants to deal with these 
facts, and to produce evidence of what the imports into 



64 INTERNATIONAL LAW : DECISIONS AND NOTES. 

Germany by or through Armour & Co. of similar products 
were during the two or three years before the war. The 
Crown did not oppose any adjournment which might be 
necessary for this purpose. Sir Robert Finlay, as counsel 
for Armour & Co., said: "We will get that statement 
without delay as to the amount of those articles (namely, 
lard, bacon, and other foodstuffs) exported in three years 
before the war into Germany by Messrs. Armour & Co." 
No such statement was produced; and therefore (as I 
intimated during the discussion) I have to decide upon 
the materials which had been placed before me at the 
conclusion of the hearing. The claim of Messrs. Armour 
& Co. (dated April 21, 1915) was made on the ground 
that the goods were their property as neutrals shipped 
on neutral vessels, and consigned to neutrals at a neutral 
port; and that the goods were not intended for sale to or 
use by or on behalf of an enemy Government, or the 
armed forces of an enemy. The main evidence in sup- 
port of the claim was an affidavit sworn May 27, 1915, 
by Mr. Meeker, one of the vice presidents and managers 
of Armour & Co. It is practically in the same terms as 
the affidavit sworn in support of the claim of Morris & Co. 
It is indeed a "common form" affidavit. The pith of it 
is that " the whole of the said goods were shipped to the 
order of the agent in Copenhagen for sale in the agent's own 
district in the ordinary course of business. The standing 
instructions to the agent that no sales were to be made 
outside the agent's district were never withdrawn by the 
claimants, and the agent had no authority to sell the 
goods except to firms established in Denmark, other 
Scandinavian countries, Finland, or Russia." 
evidence r & Cos Germany is not named; and the impression conveyed, 
and clearly intended to be conveyed, was that the goods 
were shipped and consigned for purely Scandinavian 
business, as if the war had not intervened. 

As to the shipment on the Kim, however, there was this 
additional paragraph: 

"The S. S. Kim sailed from the port of New York 
on November 10, and up to that time the claimants 
had no knowledge whatever of the order in council of the 
British Government of October 29, 1914, which was not 
received by the State Department at Washington until 
after the said vessel had sailed." 

That is not in accordance with the facts; for the order 
in council had been notified to the American ambassador 



INTERNATIONAL LAW! DECISIONS AND NOTES. 65 

on October 30, and was published in New York on No- 
vember 2. 

Further affidavits were filed. 

One was by Mr. Finney, which is wholly immaterial. 
Another was by Mr. Garside, dealing only with that part 
of the shipment which consisted of canned beef; to which 
reference will be made hereafter. 

The last was by Mr. A. R. Urion, and was sworn about 
a week after the hearing in court had commenced. 

Mr. Urion deals with various matters before the war, 
but as to transactions after the outbreak of war he 
deposes as follows : 

"Par. 6. None of the goods shipped by Armour & Co. 
to the Copenhagen company subsequent to the outbreak 
of war were sold to the armed forces or to any Govern- 
ment department of Germany or to any contractor for 
such armed forces or Government department. About 
90 per cent of the goods were sold to firms who had been 
customers of the company and established in Denmark 
and Scandinavia for many years. These sales were all 
genuine sales, and payment was made against documents 
in the ordinary way, and on delivery Armour & Co.'s 
interest in the goods absolutely ceased." 

It is to be observed that he does not specify what the 
goods were, or to whom or when they were sold. The 
statement about the genuine sales of 90 per cent can 
not refer to the goods in the four ships in question. Such 
a statement as to those goods would be wholly untrue; 
and when he talks about payment and delivery of the 
goods, that must refer to some other goods, because those 
now in question never were delivered. It is significant 
that in this last affidavit filed for the claimants, Mr. 
Urion avoids altogether any explanation of the shipment, 
or sale, of the goods which his company now claim. 

Part of the shipments consisted of canned beef in tins. Ti ^»d *>*»£. 
The quantity was 5,600 dozen tins of 24 ounces each net, 
equal to 100,800 pounds. There was evidence before 
me, on behalf of the Crown, that cases of this size were 
not usual for civilian markets; that large quantities of 
this particular brand of tinned meat in tins of that size 
had been offered for use in the British Army; and that 
these packages could only have been intended for the 
use of troops in the field. 

Evidence was given for the claimants to the contrary. 
But it is important to observe that no evidence was 



66 INTERNATIONAL LAW! DECISIONS AND NOTES. 

given that a single tin of that kind had ever been sent 
by Armour & Co. into Denmark before the war; nor, 
indeed, that any had been sent theretofore to Germany 
for the civilian population. 

I do not say that it was proved that none were so sent. 
But it was not proved that any had been sent. Mr. 
Garside's affidavit, dealing with this matter, is vague, 
and supplies no evidence that a single pound of canned 
meat in these tins had ever been sent before the war to 
Denmark or to Germany. This was pointed out to Sir 
Robert Finlay during the argument, and, in consequence, 
the promise (already mentioned) to supply a statement 
as to this was made. 

Although the claim, which had formally been put 
forward upon the affidavits, was that the goods shipped 
by Armour & Co. were sent in the ordinary course of the 
Danish or Scandinavian business, it is significant that 
at the hearing the ground adopted by Sir Robert Finlay 
was not the same. I will not paraphrase his statement 
of this ground, but will give his exact words : 

"My case is not that they were all to be consumed in 
Denmark or Norway; my case is that they were not 
consigned to the German forces, and it was almost 
certain there was no continuous voyage." 

Upon this the solicitor general intervened and said: 

u I think I heard my learned friend say a moment ago 
that his case was not that these goods were destined for 
Danish consumption but for German civilian con- 
sumption." 

Then Sir Robert Finlay answered: 

"No; I said that our case was not that the goods were 
intended for consumption in Denmark, but that the 
persons to whom they were consigned sold them to 
Germany." 
consignees. B u t as w in be seen from the figures already given of 

the goods shipped by Armour & Co., less than one-fifth 
were said to have been sold to consignees; and the 
undisputed fact is that more than four-fifths had not 
been sold; and these are in fact claimed by Armour & Co. 
as having remained their property. 

There are several references to Armour & Co. in the 
Ascher correspondence, but one passage refers to them 
alone and specially, and some explanation of it might 
have been expected. It relates to another vessel; but 



INTERNATIONAL LAW I DECISIONS AND NOTES. 67 

it illustrates the nature of Armour's business with 
countries contiguous to Germany in November, 1914. 

On November 11 E. Ascher writes to Cudahy & Co.: 

"Mr. Boernbrink had a conversation with the repre- 
sentative of Armour & Co., in Kotterdam, who assured 
him that his principals had booked several parcels of 
stuff intended for German buyers on the steamship 
Maartensdylc without being compelled to sign a declara- 
tion; and if this is according to fact, we can not explain 
why Messrs. Armour & Co. should be in a position to 
accomplish what you can not." 

More facts relating to the shipments of Armour & Co. 
will be stated when I deal with the claims of their alleged 
vendees, namely, the Provision Import Co., Christensen 
and Thoegersen, Brodr Levy, Hansen, and Frigast; and 
the present statements as to their direct claim must be 
supplemented by any material facts emerging from the 
consideration of the subclaims. 

Finally, I note that the claimants did not produce any 
letter, telegram., contract, or any other document passing 
between them and their agents in Copenhagen touching 
any part of the enormous quantities of goods shipped; 
and not one single book of account, or commercial docu- 
ment of any kind kept by their agents in Copenhagen, 
dealing with the goods claimed, was disclosed. 

AS TO THE CLAIM OF SWIFT & CO. AND HAMMOND & CO. 

These two firms are connected, and their claims were 
taken as one. Together, the goods they shipped amounted 
to over three and one-fourth million pounds; Swift & Co. 
consigning over two million, and Hammond & Co. over 
one million pounds. In all cases the consignments were 
to their own order. No part of Swift's two million 
pounds had been sold, or contracted to be sold, to any one 
at the time of seizure. (It had been alleged and sworn 
by Mr. Edward Swift that a portion had been sold to one 
Dreyer of Aarhuus; but at the hearing this was not 
relied on.) But it was alleged that a considerable part 
of Hammond's goods had been sold to two firms, Buch & ncr 3 + u / ° p e a n 
Co. and Bunchs Fed., whose subclaims will be dealt with 
hereafter. 

The affidavit in support of the claim was in the same 
common and perfunctory form as those in the last two 
cases. 



agents. 



68 INTERNATIONAL LAW: DECISIONS AND NOTES. 

The unnamed " salaried employee" and " agent,' 7 and the 
standing " instructions" to the agent to confine his sales 
to his district (in this case " Denmark"); the consign- 
ment "for sale in Denmark," and "only to firms estab- 
lished in Denmark," have become stereotyped. At the 
hearing it transpired that the person to whom the two 
companies intrusted the transaction of the business was 
one Peterman, their manager at Hamburg. After the 
war began an intercepted cablegram showed that on 
September 1, 1914, Swift instructed their agents at 
Rotterdam to ask their Hamburg office if it recommended 
consignments of meats and lards to a bank at Copen- 
hagen, and if so what quantities, and who would sell, 
and what percentage of invoice value they could draw. 
The court was not informed what answer was given by 
Peterman. At an early date, September 16, 1914, 
Peterman advised the companies to discontinue con- 
signing their products, nevertheless later it is found that 
they cabled to Peterman to make sure to arrange proper 
storage at Copenhagen for their consignments, in view of 
the possible large number of consignments by other 
parties. 

Again Peterman is asked if he can insure against war 
risk by other than German companies ; and if not, to give 
name and financial standing of German companies, and 
to get assurance that losses would be promptly paid 
without complications. Before the war, a person of the 
name of Stilling Andersen of Copenhagen seems to have 
been intrusted with whatever business the claimants 
had in Denmark. After the seizure of the first three 
vessels, and after the sailing of the fourth, Swift & Co. 
write to Lane & Co. (who represented them in London) 
a letter (November 17) in which they say: "If it is neces- 
sary for you to obtain proofs of our ownership, will you 
kindly apply to Mr. H. Peterman, Copenhagen, at which 
point we have opened an office, in order to facilitate the 
handling of our business in Denmark, under the existing 
disadvantageous conditions. For your guidance, it 
might be well for us to mention that our business in Den- 
mark for many years past has been carried on under the 
jurisdiction of our Hamburg office, Mr. Peterman there 
having charge of same." 

Neither Mr. Peterman, nor any one acting for Swift 
& Co. or Hammond & Co., in Copenhagen, nor any one 
from their Copenhagen bankers made any affidavit, or 



INTERNATIONAL LAW! DECISIONS AND NOTES. 69 

gave any evidence relating to the business in which the 
large shipments in question were made. 

The situation was described by counsel for Swift & Co. 
as follows: 

"It comes to this, Stilling Andersen was the agentjn 
Copenhagen. He was under the control of Peterman in 
Hamburg. The business that was done in Denmark was 
handled from Hamburg, Stilling Andersen being the 
local agent. Then when Peterman came across to 
Copenhagen Peterman would be the person still in control, 
although I dare say Stilling Andersen would still be the 
agent, though probably under the control of Peterman." 

Later on (but before December 10) Peterman's name 
was entirely dropped out; and in the cablegrams relating 
to the business the name of " Davis" was used for Peter- 
man. No evidence was given to explain why this " alias " 
of Peterman was adopted and used; nor was any evidence 
produced to show how the "alias" had been communi- 
cated to the Copenhagen or Hamburg offices. 

No book of account, or correspondence or document of 
any kind kept by Peterman or any other agent of the 
claimants at Copenhagen relating to the business, was 
disclosed. . 

Thus was the case of Swift & Co. and Hammond & Co. 
left. 

AS TO THE CLAIM OF SULZBERGER & SONS CO. 

This company's direct claim related to close on 1} 
million of pounds. Their goods were shipped on all the 
vessels. There is a subclaim by Pay & Co. for over 
800,000 pounds. The consignments, Sulzbergers' claim, 
were all to their own order — Leopold Gyth, of Copenhagen, 
being the party to be notified. It was said that Gyth 
was since August 1, 1914, the agent of the company for 
the sale ol its products in Denmark. For some years 
before that Pay & Co. were the agents; and there was a 
controversy as to whether their agency had really ceased 
at the time of the seizure. 

In a letter written by Pay & Co. to Sulzbergers on ag ^ ropea n 
July 20, 1914 (about a fortnight before the war), they 
explain that the sales for the company had been retro- 
grading owing to the manufacture of vegetable margarine 
having become predominant in Denmark, 80 per cent 
of the prcduce being vegetable. In these circumstances 



70 INTERNATIONAL LAW '. DECISIONS AND NOTES. 

it is strange that no evidence was forthcoming from 
Gyth, or any one else, to explain these large shipments. 

It was put forward in the affidavit that the bills of 
lading had been dispatched through a bank to Copen- 
hagen — I assume to a bank there — and that they had 
been returned. No correspondence was produced as to 
this; nor was there any evidence from any Copenhagen 
bank. 

There is very little trace of anything which Gyth, the 
alleged agent, really did. I think there is only one 
cablegram to him at Copenhagen in 1914 amongst those 
intercepted. That was sent on October 16. 
methods ergers Other people connected formerly, and probably at the 
time, with Sulzbergers' Hamburg office were much more 
active. The earliest record of the Sulzberger transactions 
after the war began which was produced to the court was 
a letter of September 21, written b}^ Sulzbergers from 
Hamburg to Pay & Co. It is an important letter, show- 
ing what Sulzbergers' business projects at the time were, 
and to what devices they were willing to descend in order 
to get goods into Germany. It is best to set it out 

verbatim : 

Hamburg, September 21, 1914. 
Messrs. Pay & Co., Copenhagen. 

Dear Sirs: We acknowledge receipt of your esteemed favor of 17th 
instant, contents of which duly noted. 

It is possible for us to buy great quantities of oleo and lard, etc., 
from America c. i. f. Stettin. 

We beg to ask you whether it is possible to send the goods from 
America, via Copenhagen to Stettin, if the bill of lading bears the 
following inscription, " Party to be notified, order Pay & Co.," so that 
you stand quasi as consignee. You had then to transmit the goods 
for us to Stettin, for which we are willing to pay you a small allowance. 
We await your kind news as to this point. 

Concerning Mr. Leopold Gyth is at present nothing to be done with 
this gentleman, which is not astonishing under the critical circum- 
stances prevailing. 

Very truly yours, 

Sulzberger & Soxs Co. 

Here are the claimants, through their Hamburg office, 
scheming to do what the Crown contend they intended 
to do in relation to the goods seized. Pay & Co. declined 
to comply. Whether Pay & Co., or Gyth, afterwards did 
what they were asked to do is another matter. But 
Gyth is afterwards named in all the bills of lading as the 
party to be notified. No explanation of this circum- 
stance was vouchsafed. 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 71 

Two German representatives of Sulzbergers, namely, 
Christiensen and Saemann, are afterwards at a Copen- 
hagen hotel and are active over the cables. One of them 
shows that Christiensen, and not Gyth, was dealing with 
the war risk of the Fridland. Saemann in another (his 
twentieth) cable suggests the discontinuance of selling 
until cargoes seized should be released; and again he 
cables that he could ship to Sweden, "but that guarantee 
was required/' which of course meant guarantee against 
exportation. 

In connection with this it may be noted that Saemann 
cabled, again from Copenhagen, in January, that exporta- 
tion of lard, casings, and fatbacks from Norway had been 
prohibited: and Pay & Co. also cabled to them " Don't 
ship any lard Copenhagen" (after exportation from Den- 
mark had been prohibited) ; in what capacity, whether as 
agents or not, was not explained. 

It is interesting to note that Sulzbergers of Liverpool, 
in reference to these prize proceedings, ask the claimants 
over the cable, " Will it be convenient call witnesses from 
port destination show goods not intended enemy use?" 

Whether there was an answer to that question I do not 
know, but the practical answer at the hearing was that 
it could not have been deemed convenient, as no witness 
from Copenhagen gave evidence either verbally or by 
affidavit. 

In November, a cablegram shows that Sulzbergers had 
also supplied, or offered to supply, their corned beef to 
the French Government. 

This they had a perfect right to do, subject to any 
risk of capture by enemy ships. It would be strange if 
they had been unwilling to do the same for Germany. 
The risk of capture of goods sent to France was very 
small compared with the risk of goods consigned to 
Germany. Dealings with the French Government could 
accordingly be had direct with practical safety. If there 
were to be transactions with the German Government, a 
much more indirect and involved plan may well have 
been deemed expedient. 

No particulars were given of any business carried on 
by the claimants at Copenhagen before the war. As in 
other cases, no books of account or any documents from 
the Europe end were disclosed; nor indeed any docu- 
ments except the bills of lading and insurances. 



72 INTERNATIONAL, LAW : DECISIONS AND NOTES. 

No evidence was given at Sulzbcrgers touching the 
goods alleged to have been sold to Pay & Co. 

Further facts relating to the claimants will be given 
in dealing with the claim of Pay & Co. 

AS TO THE CLAIM OF CUDAHY & CO. 

The direct claim of this company is in respect of 176,559 
pounds of lard and beef casings shipped on the Alfred 
Nobel and the Fridland, to their own order — party to 
be notified Schaub & Co. The shipments were before 
the order in council of October 29. 

The grounds of their claim are that they had sold the 
goods to Schaub & Co. for the Danish business of their 
firm at Esbjerg; that they had drawn upon them for 
the price, but that the drafts were not accepted by reason 
of the seizure; and that the goods remained the property 
of the claimants. 

The claimants were dealing with the French Govern- 
ment (see Exhibit J. P. M. 2, pp. 1 and 8) ; and they 
were in close communication with E. Ascher & Co., of 
Hamburg, with reference to their trade with Germany, 
as the Ascher correspondence (J. P. M. 10) so clearly 
shows, 
trad? traband The claimants were quite open to carry on a trade in 
contraband with the enemy, as the facts clearly show; 
but the question as to the goods they now claim is 
whether they steered clear of dangers by a bona fide 
sale to Schaub & Co., of Copenhagen, for use in Denmark. 
It was said that as to the lard (which was the chief 
consignment) it was to go through a refining process at 
Esbjerg. Whether afterwards the refined lard would 
have been sent to Germany is immaterial upon the 
question now before the court, if it was at the time of 
seizure on its way to Denmark to a purchaser who 
intended to put it through a manufacturing process there. 

The documents in this case were put fairly before the 
court; and — although there are circumstances of sus- 
picion—the conclusion to which I have come is that 
there were bona fide contracts of sale of the particular 
goods claimed by Cudahy & Co. to Schaub & Co., of 
Copenhagen, and that these goods were on their way to 
Real destina-T3 enmar k as their real and bona fide destination, and 

uon. m t ' 

were intended to be imported on their arrival into the 
common stock of the country. The larger proportion of 
Cudahy 's shipments is the subject of claims by Christen- 



INTERNATIONAL, LAW! DECISIONS AND NOTES. 73 

sen and Thoegersen, and Elwarth, which will be dealt 
with in their appropriate places. 

I have now stated the separate facts affecting the 
cases of the American shippers, and before proceeding 
to the cases of the alleged Scandinavian purchasers I 
will refer shortly to what I have called the "Ascher" 
correspondence, which will be found in Exhibit J. P. M. 
10 to the affidavit of the procurator general. This was intercepted! 6 
a series of intercepted letters written from Hamburg by 
Ascher & Co. to the last-named claimants — Cudahy & 
Co. — some before the seizures and others afterwards. 

I read them for general information as to the circum- 
stances in which it was known the trade in conditional 
contraband was carried on; and I find in them cogent 
corroboration of many facts and inferences already I 
think sufficiently established without them. 

They sound almost like a talk between merchants 
"on change" relating to a trade rendered interesting 
through the commercial risks which its manipulation 
involved. If the correspondence could have been 
completed by the inclusion of the letters from America 
in reply, it would have been still more elucidating. 

The letters show an intimate knowledge of what was 
being done by the various shippers in reference to 
consignments of foodstuffs to Copenhagen; of the diffi- 
culty of exportation from Denmark to Germany; and 
of the probable fate of some of the cargoes now before 
the court. 

It was objected that they could not be evidence against 
any persons other than Ascher & Co. and Cudahy & Co., 
and that they ought not to be read in any of the other 
cases. If they stood alone, I should not act upon them 
as affecting those cases. But it must be remembered . Prize court evi_ 
that prize courts are not governed or limited by the 
strict rules of evidence which bind, and sometimes 
unduly fetter, our municipal courts. Such strict evidence 
would often be very difficult to obtain, and to require 
it in many cases would be to defeat the legitimate rights 
of belligerents. 

Prize courts have always deemed it right to recognize 
well-known facts which have come to light in other cases, 
or as matters of public reputation. 

In the case of the Rosalie and Betty™ Lord StoweU io ^ owdr8 °' in " 
discussed the subject generally, and said: "In consider- 
so (1800) 2 C. Rob. 343. 



74 INTERNATIONAL, LAW! DECISIONS AND NOTES. 

ing this case I am told that I am to set off without any 
prejudice against the parties, from anything that may 
have appeared in former cases; that I am not to consider 
former cases, but to consider every case a true one, until 
the fraud is actually apparent. This is undoubtedly the 
duty in a general sense of all who are in a judicial situa- 
tion; but at the same time they are not to shut their 
eyes to what is generally passing in the world." Then 
he refers to well-known facts and expedients relating to 
illegal trading and fraudulent practices during war, and 
adds: "Not to know these facts as matters of frequent 
and not unfamiliar occurrence would be not to know the 
general nature of the subject upon which the court is to 
decide; not to consider them at all would not be to do 
justice." 

civil war cases, j w [\[ pause only to give one illustration from the 
American authorities. In the judgment in the Stephen 
Hart 31 the court read from a statement by the solicitor 
general (Sir Roundell Palmer) in the House of Commons 
relating to the contraband trade between England and 
America by way of Nassau in the following passage: 

"The then solicitor general of England (Sir Roundell 
Palmer) stated in the House of Commons on June 29 last, 
referring to the cases of the Dolphin and the Pearl, 
decided by the district court for Florida * * * that 
it was well known to everybody that there was a large 
contraband trade between England and America by way 
of Nassau; that it was absurd to pretend to shut their 
eyes to it; and that the trade with Nassau and Matamoras 
had become what it was in consequence of the war"; and 
the learned judge in the same case in another passage said: 
"The cases of the Stephen Hart, the Springbok, the 
Peterhoff, and the Gertrude illustrate a course of trade 
which has sprung up during the present war. and of 
which this court will take judicial cognizance, as it appears 
from its own records and those of other courts of the 
United States, as well as from public reputation." 

weight of as- The " Ascher" letters having been written to one of the 
big shippers about, and with intimate knowledge of, this 
trading and being obviously genuine, and indeed never 
intended to see the light in this court, I consider that on 
general principles the court was entitled to read them 
and so to inform itself as to this trade generally, without 
of course, allowing any statements in them to injuriously 

si (1863) Blatch. Pr. Cas. 387, at pp. »03, 404. 



INTERNATIONAL LAW: DECISIONS AND NOTES. 75 

affect any claimant, especially if there was no opportun- 
ity for him to deal with theni. It is right to add, that 
if I had not been made acquainted with their contents, 
my decision in every case would have been the same; 
but they do give a sense of mental satisfaction in regard 
to inferences which have been drawn. 

I will now proceed with the cases of the alleged pur- 
chaser claimants. 

AS TO THE CLAIM OF PAY & CO. 

This firm claims goods to the extent of 1,710,818 
pounds, shipped on the four vessels. 

The shippers were Sulzberger & Sons Co., Morris & Co., 
and the South Cotton Oil Co. 

The consignments were to the order of the shipper 
and in the case of Sulzberger & Co., the parties to be 
notified were Pay & Co.; in the case of Morris & Co., the 
parties to be notified were Morris & Co. of Christiania; 
and in the case of the South Cotton Oil Co. no parties to 
be notified were named. 

The substantial question in this case is whether Pay & 
Co. were merely agents of the consignors or independent 
purchasers. 

Pay & Co. say they were for many years before the war, ch a S g e e £ ts or pur " 
and remained after the war, agents for Sulzbergers. 

There is a conflict between their statement and that of 
Sulzbergers as to the agency. The latter say the agency 
of Pay & Co. ceased after August 1, 1914. No contracts 
for the purchase of the goods claimed by Pay & Co. were 
produced; but certain invoices were sent by them to the 
procurator general; and they allege that they paid for the 
goods. Except as to a small portion of the goods shipped 
by Sulzbergers on the B. Bjornson, and of the goods 
shipped by the Southern Cotton Oil Co. on the Fridland 
(of the alleged subsales of which no particulars or satis- 
factory evidence were given), the goods they claim were 
not sold before the seizure, but were, according to their 
account, bought for the purpose of adding to their stock to 
be sold and consumed in Scandinavian countries. 

In the affidavits filed on behalf of the claimants it was 
deposed that the " drafts for all the goods were duly 
paid" by them. 

None of the drafts were produced. 
59650—24 G 



76 INTERNATIONAL, LAW! DECISIONS AND NOT- 

At the hearing certain letters from the bankers were 
produced in order to establish that payments had been 
made. 

These documents referred to some arrangements made 
after the seizure. They do not show what, if any sums 
were paid, but refer to certain arrangements to debit, 
which were only book entries. I saw none of the books. 

No evidence has been adduced from the bankers them- 
selves, nor was any explanation given of the communi- 
cations from Pay & Co. which led to the bankers writing 
the letters referred to. 

It ought to have been easy for the claimants to show by 
documents when and how, and at what price and on 
what terms, they purchased the goods, if they really 
were purchasers on their own account, and to prove, if 
that was the fact, that payment was made as alleged. 

The claimants aver that when the war broke out they 
received letters from the American slaughtering firms 
asking them to assist the American houses in sending 
goods to German buyers, but that they refused to enter- 
tain the proposition. 

They do not say whether the request came from the 
shippers of any of the goods they now claim. They 
ought to have done so. The not unnatural inference 
is that it did. 

No evidence whatever has been given by any of the 
consignors in regard to the goods claimed by Pay & Co. 

After a careful consideration of all the circumstances, 
I have come to the conclusion that the claimants have 
not shown that the goods were sent to them as purchasers, 
but that they were sent to them as agents for the con- 
signors. Even if they had intended to purchase the 
goods for themselves, they have entirely failed to satisfy 
me that they had become the owners of the goods. 

AS TO THE CLAIM OF THE PROVISION IMPORT CO. 

This is a Danish company carrying on business in 
Copenhagen as importers and dealers in lard stock, etc. 

Their direct claim is to 1,176,050 pounds of lard and 
oleo stock shipped on the A. Nobel and the Fridland. 
The shippers were Armour & Co. — the consignees Armour 
& Co. of Copenhagen — and the parties to be notified were 
the Provision Import Co. 



INTERNATIONAL LAW. DECISIONS AND NOTES. 77 

The case for the claimants is that they bought and sal ^ estion of real 
paid for the goods from the shippers through their agents 
at Copenhagen in the ordinary course of business, and 
that the goods were intended to and would have been 
disposed of in their business in Scandinavia if they had 
been delivered. They give particulars of subsales in 
Denmark and Sweden to margarine manufacturers before 
the seizure. These subsales comprise over 200,000 pounds 
of the goods— the other portion, over 900,000 pounds, 
they say had not been sold at the time of seizure. 

The Crown's case was that the sales were not real sales, 
but that the Provision Import Co. were merely to deal 
with these goods as agents for the shippers. 

There is evidence that before the war they bought 
goods from Armours ; there is no evidence that they were 
ever agents for them. In the affidavit of the procurator 
general the Provision Import Co. were said to be the 
representatives of Hammond & Co. in Copenhagen; but 
they are not in these cases involved in any of the Ham- 
mond shipment transactions. I only find them once 
mentioned in the intercepted Armour cablegrams. That 
is on October 29, a date subsequent to those given for the 
purchases of the goods in question, but anterior to any 
seizures. That cablegram is consistent, and I think 
only consistent, with their being the purchasers in the 
case it refers to. 

The documents were fairly completely produced to 
the court by the claimants. In my opinion the right 
conclusion is that the Provision Import Co. were bona 
fide purchasers of the goods they claim. 

AS TO THE CLAIM OF CHRISTENSEN AND THOEGERSEN. 

This claim is in respect of goods shipped by Morris & 
Co. on the A. Nobel and the B. Bjornson; by Cudahy & Co. 
on the A. Nobel and the Fridland; and bv Armour & Co. on 
the Fridland. The shipments were all, therefore, be- 
fore the order in council of October 29, 1914. 

The main question as to these goods is whether they ch a S g e e r s ts ° r pur * 
were sent to the claimants as selling agents for the 
shippers, or as purchasers on their own account. 

The affidavits of Mr. Thoegersen, the sole proprietor of 
the firm, acknowledge that they sometimes acted as 
agents, but say that those particular goods were sold to, 
and bought by, them as purchasers, and that as to the 
greater part of the goods, the claimants had sold them 



78 INTERNATIONAL LAW : DECISIONS AND NOTES. 

to their own customers in Denmark, Sweden, and Nor- 
way, some before the sea voyage commenced, and others 
during transit. Particulars of these subsales were given. 

The Ascher correspondence throws some light on the 
situation as between Christensen and Thoegersen and 
Cudahy & Co. 

I am now going to refer to the Ascher correspondence as 
being helpful to some of the claimants, 
spondence °° rre " * n a ^ etter dated November 25, 1914, Ascher writes: 
"We are glad you have been able to do so heavy a busi- 
ness with Messrs. Christensen and Thoegersen, and of a 
portion of it they have already reaped the benefit, for we 
have been informed that heavy lines of lard of your brand 
have been already distributed amongst German buyers, 
particularly in the east by way of Stettin. How they will 
fare with subsequent shipments is problematical, for 
the fate of the S. S. A. Nobel is still quite uncertain." 

And in a later letter (January 6 last) : " As for Christen- 
sen and Thoegersen they are said to have made so much 
money out of the war, that even a big loss would not be 
greatly felt by them, if the Nobel should be permanently 
lost. This, however, we think is out of the question so 
far as neutral owners of the cargo are concerned." 

I can not doubt that Christensen and Thoegersen did 
sell large quantities to Germany of goods imported from 
the American meat packers. 

It is sworn that the drafts which appear by the docu- 
ments to have been drawn by the shippers on the claim- 
ants were duly paid. I should have desired better evi- 
dence upon this point; but the dispute really is not 
whether the title to the ownership of the goods had passed, 
but whether in these particular transactions the claim- 
ants were acting merely as agents, or intermediaries for 
the consignors, or were purchasers. The passages 
I have read from the Ascher letters are more consistent 
with their being purchasers; and upon the whole the 
conclusion to which I have come is that the goods claimed 
were shipped to them as bona fide purchasers, and not as 
agents. 

AS TO THE CLAIM OF BRODR LEVY. 

This firm of merchants (" dealers in herrings, codfish, 
and provisions") claims lard and fatbacks, shipped by 
Morris & Co. to their own order respectively. 



INTERNATIONAL LAW I DECISIONS AND NOTES. 79 

The proofs in this case are not satisfactory. The 
goods comprised in bill of lading 1 1 on the Kim are also 
claimed by Morris & Co.; and those in bill of lading 62 
on the Kim are also claimed by Armour & Co. The goods 
claimed from the A. Nobel are said to have 4 been bought 
from Conrad Bang, an agent for Morris & Co. at Copen- 
hagen, and from Backstrom, their agent at Stockholm. 

An alleged copy of invoice, dated October 26, 1914, was^^ 60 '** 118 - 
exhibited, which says the goods were intended for the A. 
Nobel (which had sailed six days before), and that they 
had been war insured at Copenhagen. In relation to all 
the goods claimed there is a bare statement that pay- 
ment was made without any dates, amounts, or par- 
ticulars whatsoever. The claimants did not produce any 
of the shipping documents. No affidavits were made by 
Bang or Backstrom or by any one from Armour's Copen- 
hagen office. The claimants do not say whether they 
had dealt in lard or fatbacks before or not. No dates 
appear on the invoices. The shippers who are said to 
have been paid also lay claim to close on half of the 
goods. Altogether the proofs are deficient, and I am 
not satisfied that the goods claimed were sold to the 
claimants, or that they had paid for the goods, or become 
the owners thereof; and the claim fails. 

As to the goods also comprised in the claims of Morris 
& Co. and Armour & Co., they must be treated, therefore, 
as having been shipped by the shippers to their own 
order, and remaining their property at the time of seizure. 

AS TO THE CLAIMS OF VILHELM ELWARTH. 

Mr. Elwarth has put forward two claims: (1) One 
dated April 10, 1915, to 61,000 pounds of lard shipped by 
Cudahy & Co. on the A. Nobel — to their own order — party 
to be notified, Ernst Ascher & Co. of Rotterdam; and 
(2) the other dated June 1, 1915, to 88,618 pounds of oleo 
oil, shipped on the same vessel by the Consolidated 
Rendering Co., of Brightwood, Mass. — to their own order — 
with the same party to be notified. 

It is necessary to investigate closety the position of 
Vilhelm Elwarth. He was described in the affidavit of 
the procurator general as the agent in Copenhagen of E. 
Ascher & Co., of Hamburg. In his affidavit in reply he a ^ t cher & Co ' s 
does not deny that, although he denies agency qua the 
particular transaction. In his affidavit of May 15, in 



80 INTERNATIONAL LAW.* DECISIONS AND NOTES. 

support of the first claim, he said he carried on business 
in Copenhagen as a provision merchant with a large 
number of retail dealers as customers. In that of June 
14, in support of the second claim, he has become an 
import merchant frequently importing into Denmark, 
among other things, oleo oil. His case is that he bought 
both the lard and the oleo oil at different times from Ernst 
Ascher & Co., of Rotterdam. The latter are agents for 
E. Ascher & Co., of Hamburg. He alleges that he bought 
the lard verbally on September 26 on a personal visit of 
some one to him at Copenhagen; that payment was to 
be by draft against documents; and that "in due course" 
he paid for the said goods and took up the documents. 
The draft was not produced, and no dates or further par- 
ticulars of payment are given. The oleo oil he says he 
bought verbally at Kotterdam on July 25 and 28, 1914; 
and that payment was to be by net cash. The documents 
purporting to be invoices for all the goods bear date 
November 3. No explanation was given of how the claim 
to the goods comprised in the earlier contract was not 
made till a couple of months after the claim to the goods 
the subject matter of the later contract. 

The Ascher letters, written by his principals, throw 
light upon the lard transaction, and upon the rest of 
Elwarth' s claim. It will be remembered that evidence 
was given, and not contradicted, that he was Ascher's 
agent at Copenhagen. In a letter to Cudahy of Novem- 
ber 7, Ascher & Co., of Hamburg, appear to treat the lard 
as having been their property. They say, "Nor are we 
sure that the war risk on the 500 half -barrels of pure lard 
on board the steamship Alfred Nobel had been taken out 
by your good selves, not having received a debit note of 
the charge up to the present." Later, in the same letter, 
they say that it had been sold by their Kotterdam office 
"to a Danish firm." These were the consignments of 
lard claimed by Elwarth. 

Elwarth is not named, although he was well known; 
and it is doubtful whether he was the person referred to, 
as he does not appear to be a member of any "firm." 

After the capture of the A. Nobel they write (Novem- 
ber 20) that they were interested both in the lard and oleo 
oil: "We are watching the development with much inter- 
est, although we ourselves are interested only with those 
500 half-barrels of lard of yours, and a couple of hun- 
dred tierces of oleo, both of which we are happy to say are 



INTERNATIONAL LAW.* DECISIONS AND NOTES. 81 

fully covered against war risk, so that in the worst of 
cases we can not lose much." Those were all the goods 
claimed by Elwarth. They had in the meantime also sug- 
gested that consignments to them should be made osten- 
sibly to Elwarth. They wrote: "We suppose if Rotter- 
dam were to cable you 'Ship sales Elwarth/ you would 
understand that this meant a request to have our pur- 
chases forwarded to Copenhagen either to the address of 
our agent at that city, Mr. Vilhelm Elwarth, or to your 
order, party to be notified, Vilhelm Elwarth, Copenhagen. 
It might be right also in that case for you to invoice the 
goods to Mr. Elwarth, handing on a copy of the invoice 
simultaneously. ' ' 

The correspondence refers frequently to Elwarth, and it 
contains a testimonial to his assiduity and fidelity as an 
instrument of Ascher & Co., Hamburg, since the begin- 
ning of the war, in these words: 

"We repeat that we consider ourselves responsible for 
any shipments you may be making to Mr. Elwarth during 
this period, and we are glad to say he has proved himself 
entirely reliable in all transactions which we had to let 
go through his hands since the beginning of the war." 

I have come to the conclusion that the claim made by 
Elwarth is not a bona fide claim on his own behalf. He 
was not a purchaser from Ascher & Co. of Rotterdam, 
or of Hamburg. He was merely a nominee of theirs. 
The goods are not claimed by any person entitled to 
them, and therefore they stand to be treated as goods 
unclaimed. 

AS TO THE CLAIM OF PETER BUCH & CO. 

A claim was put in on behalf of this firm to goods 
covered by bills of lading on three of the vessels, as 
follows : 

On the B. Bjornson, BB/L. 178 to 186, and 188; 

On the Fridland, BB/L. 62 to 65, and 78; and 

On the Kim, BB/L. 95 to 97, and 128-131. 

The total quantity of the goods thus claimed was 
752,908 pounds. They were all shipped by Hammond & 
Co. to their own order. 

Although the claim was entered, no evidence whatso-^wk of evi- 
ever was adduced, nor was any document produced in 
support of it. Counsel appeared for some underwriters 
in the names of Buch & Co., but had not been supplied 
with any documents or materials. (It should be noted 



dence. 



82 INTERNATIONAL LAW '. DECISIONS AND NOTES. 

that when Mr. Cave referred to an affidavit relating to 
goods on the Fridland (B/L. 61) as if it was one by the 
present claimants, there is a confusion; that affidavit 
related to another claim by C. Bunchs, Fedevareforret- 
ning.) 

The evidence for the Crown was that Peter Buch & 
Co., of Copenhagen, were very large exporters of provi- 
sions to Germany, and were a branch of the firm of that 
name in Hamburg. The shippers gave no evidence as to 
these shipments. 

As no evidence was adduced in support of the claim, it 
necessarily fails. 

AS TO THE CLAIM OF J. O. HANSEN. 

The subject matter of this claim is a quantity of lard 
and fatbacks amounting to 400,625 pounds. Mr. Hansen 
says he is a Danish dealer in such goods. 

He claims four parcels of goods — one parcel each on 
the B. Bjornson, Fridland, and Kim, consigned by Morris 
& Co. to their own order; and another parcel on the Kim 
consigned by Armour & Co. to their own order. 

The goods shipped by Morris he alleges he bought from 
Erik Valeur; those by Armours from their Copenhagen 
office. He adds a schedule purporting to give a list of 
No evidence, his alleged purchases and resales; but he did not produce 
a single document relating to any of the transactions; no 
contract, invoice, bill of lading, draft, receipt, account, 
or anything else. No explanation or excuse was made 
for this. Erik Valeur was the representative in Copen- 
hagen of Morris & Co. He made an affidavit in support 
of his own claim, to which reference may be made by 
way of criticism of this claim. He alleged that he bought 
some goods for Morris on his own account, and sold others 
as agent. How he came to decide which was which he 
did not explain. The goods claimed by Hansen on the 
B. Bjornson, Valeur says, he bought on his own account. 
The sale to Hansen, he says, was on September 30, 
although Valeur himself says he only bought on October 6. 

Hansen has entirely failed to show that he was the 
purchaser or owner of any of the goods. His claim is 
quite unsupported, and I can not accept it. 

AS TO THE CLAIM OF SEGELCKE & CO. 

Mr. Eilert Segelcke, the sole proprietor of this firm of 
wholesale dealers in lard and bacon in Copenhagen, 



INTERNATIONAL LAW : DECISIONS AND NOTES. 83 

claims 275,297 pounds of lard and fatbacks shipped by ^ s °™ fide P ur " 
Morris & Co. on the B. Bjomson and the Kim to their 
own order. The claimants say they bought the goods 
partly through Valeur and partly through Conrad Bang 
(agents for Morris & Co.). 

According to the affidavit of Eilert Segelcke sworn May 
18, 1915, the various goods were paid for at different 
times. 

I am prepared to accept the account given by Segelcke 
as accurate. Accordingly I find that his firm were bona 
fide purchasers of the goods they claim. 

AS TO THE CLAIM OF PEDERSEN FOR THE FAELLESFOREN- 
INGEN FOR DENMARKS BRUGSFO RENIN GER. 

This is a claim to 45,219 pounds of neutral lard shipped 
on the B. Bjomson by Morris & Co. to their own order. 

The goods are also claimed by Morris & Co. themselves. 

In the affidavit of Pedersen of March 19 it is deposed 
that the goods were bought for the purpose of keeping up 
the stock so that the firm could comply with orders for 
margarine "from the members." 

No document is produced. The deponent does not 
even state from whom the goods were bought, or what 
the date of the alleged purchase was; and he does not 
allege that any payment was made. In a subsequent ^unsatisfactory 
formal claim (April 9, 1915) the grounds of claim state 
that the goods were bought from Erik Valeur, who in the 
first instance had himself bought the goods at an agreed 
price, c. i. f . Copenhagen, and had taken up the documents 
and paid for the goods. On looking at Valeur's own 
account in his affidavit the statement is, not that he had 
bought or paid for the goods, but that he sold them to 
Pedersen's firm as agent for Morris & Co. 

In these circumstances the claimant's proof is quite 
unsatisfactory; and accordingly, particularly as Morris 
& Co. themselves also claim the goods, I decide that 
Pedersen's firm have failed to establish their claim. So 
far as they are comprised in the claim of Morris & Co. 
they fall to be treated as goods which remain unsold. 

AS TO THE CLAIM OF HENBIQUES AM) ZOYDNER. 

This firm claims 81,096 pounds of lard shipped on the 
B. Bjomson by Morris & Co. to their own older. The 
affidavit in support of the claim contains the bare state- 



proof. 



84 INTERNATIONAL, LAW I DECISIONS AND NOTES. 

ment that this lot was purchased for the purpose of 
keeping up the firm's stock. There is no statement as 
to the persons from whom the purchase was made, what 
its terms were, what the purchase price was, or that the 
timony icting tes ' price, whatever it was, was ever paid. In a subsequent 
formal claim (unsworn) the grounds of claim state that 
the goods were purchased from Mr. Erik Valeur; that 
Valeur had in the first instance purchased the goods at an 
agreed price, c, i. f. Copenhagen, and that the documents 
therefor had been previously taken up and paid for by 
him. This statement is in direct contradiction to that of 
Valeur himself (in the affidavit already referred to), 
where he says he sold these goods merely as agent for 
Morris & Co. 

My conclusion is that the claim of this firm has not 
been established. 

AS TO THE CLAIM OF FRIGAST. 

This is a claim to 15,750 pounds of lard shipped by 
Armour & Co. on the B. Bjornson, and consigned to their 
own order. Mr. Frigast is a provision merchant at 
Copenhagen, and claims the goods under purchase through 
Armour & Co., of Copenhagen, on November 19 for the 
chaser* Me pur " purpose of his business. He produced satisfactory docu- 
ments, and I accept his account of the transaction as a real 
and bona fide transaction of purchase, and find that he 
had become the owner of the goods, and that he pur- 
chased them to be used in his own business. 

AS TO THE CLAIM OF THE KORSOR MARGARIN FABRIK, A/s. 

This firm claims one lot of 30 tierces of oleo stock laden 
on the Fridland, and another lot of 30 tierces of oleo oil 
laden on the Kim. The shippers were Morris & Co. to 
their own order at Christiana. They themselves also 
claim the first lot. The claimants say the goods were first 
bought by Erik Valeur, at an agreed price c. i. f . Copen- 
hagen, and that they in turn bought from Valeur. They 
do not say when they bought, what the price was, or 
that any payment has been made. Valeur himself does 
not say he purchased the goods and resold them, but 
that he sold as agent for Morris & Co. A declaration of 
the claimants of March 19, 1915, that the goods would be 
consumed in Denmark states that they were purchased 
lished! estab "from Morris & Co. through Erik Valeur. The evidence 



INTERNATIONAL LAW I DECISIONS AND NOTES. 85 

in support of the claim is quite unastisfactory, and I find 
the claim has not been established. The result is that 
the goods on the Fridland which are also claimed by 
Morris & Co. must be treated as goods of Morris & Co. 
unsold; and the goods on the Kim as goods unclaimed 
by any person entitled as owner. 

AS TO THE CLAIM OF THE MARGARINEFABRIK DANIA. 

This is a small claim to 9,004 pounds of lard on the 
Fridland, shipped by Morris & Co. and consigned to 
their own order at Christiania. The goods are also 
claimed by Morris & Co. themselves. 

The case is to all intents identical with the Korsor^^ 1 ^ 5t ^ b - 
claim just dealt with, except that in this case Valeur 
states he bought them first on his own account and sold 
them on the same day. They were invoiced after the 
seizure. 

I find that the claim has not been established. 

THE CLAIM OF C. BUNCHS FED. 

The claimants are a Danish company. The claim is to 
a parcel of beef tongues (3,371 pounds), shipped on the 
Fridland by Hammond & Co., consigned to their own 
order, naming Christensen and Thoegersen as the " parties 
to be notified." 

The company say they bought the goods from Christen- C h£j}? fide pur * 
sen and Thoegersen. They produced the bill of lading 
and priced invoice from Christensen and Thoegersen, 
and it is sworn they took up the documents. The in- 
voice was sent two days after the seizure. Whether 
when it was sent the seizure was known does not appear. 

On the whole I have come to the conclusion that this is 
a bona fide claim to goods bought to be dealt with in 
Denmark; and the claim is therefore allowed. 

AS TO THE CLAIM OF ERIK VALEUR. 

This is a claim to 106,155 pounds of oleo stock laden on 
the Kim. 

The shipment was by Morris & Co. to their own order 
at Copenhagen — the parties to be notified being the 
Morris Packing Co. of Christiania. 

Mr. Valeur was the representative of Morris & Co. at 
Copenhagen. He said his agency comprehended Den- 
mark only. He alleges that certain of the consignments 



86 INTERNATIONAL LAW! DECISIONS AND NOTES. 

by Morris (many of which have already been referred to) 
were sent to him for sale as agent, in Denmark; and that 
if he wished to sell goods to German}^, or German buyers, 
he would have to buy them for his own account. The 
goods he now claims he says he bought on his own 
account, and I suppose they were therefore goods he 
intended to send to Germany. I am not satisfied that 
they were. They were said to have been invoiced to 
him some days after the capture of the last of the first 
three vessels. 
Not established, j fi nc i that he has no ground whatever for his allegation 
that he was the owner of the goods. 

THE CLAIM OF CHRISTIAN LOEHR. 

This claim is for 41,952 pounds of lard alleged to have 
been bought from the Provision Import Co. This 
parcel was shipped on the Alfred Nobel and consigned 
by Rumsay & Co. to their own order, the Provision Im- 
port Co. being the parties to be notified. In dealing 
with the direct claim of the latter I mentioned that 
certain goods shipped for them had been resold, 
chaser fide pur " ^ r * Loehr is a Dane, and is the British vice consul in 
Denmark. He produced his documents, and I see no 
reason to doubt the bona fides or the reality of his purchase 
as one made for the purposes of his business in Denmark. 

AS TO THE CLAIM OF J. ULLMAN & CO. 

The subject matter of this claim consists of certain 
rubber of various kinds; 347 cases (133,209 pounds) 
were shipped on the Fridland, and 218 cases (44,428 
pounds) on the Kim. The consignors were Edward 
Maurer & Co., and the consignees "J. Ullinan & Co., 
Copenhagen." 
Rubber. Rubber was declared conditional contraband on Sep- 

tember 21, and absolute contraband on October 29, 1914. 

At the time of the shipment on the Fridland, therefore, 
rubber was conditional contraband, and at that on the 
Kim it was absolute. 

Exportation of rubber of this kind from Denmark was 
prohibited on October 22, before either of the shipments. 
Jacques Ullman had up to the time of the war carried on 
business as a merchant in rubber and other articles at 
Hamburg. 

It was stated for the Crown that he was a German; 
but this was a mistake, as it was established that he was 



"Gum.'' 



INTERNATIONAL LAW I DECISIONS AND NOTES. ?1 

born a Swiss and had remained a Swiss subject. After 
the war he gave up his Hamburg business and began trad- 
ing in Denmark. He, with his wife, formed a Danish 
company, "J. Ullman & Co.," on October 24, 1914. 

The transactions relating to the goods claimed were 
attacked by the Crown on the ground that the rubber was 
falsely described in the ship's papers as "gum" with the 
object of misleading, and on the ground that the Fridland 
shipment was confiscable as conditional contraband be- 
cause it was destined for the enemy country and for the 
use of the enemy Government; and the Kim shipment as 
absolute contraband on the ground of destination for 
the enemy country. 

The goods were invoiced as rubber. Much evidence 
was given on both sides upon the question whether "gum " 
was an accurate or a false description of the goods. After 
weighing the evidence I have come to the conclusion that 
it was not an accurate commercial description, and that 
its use in the manifest instead of the appropriate com- 
mercial description of "rubber," or various qualities of 
rubber by their commercial names, was adopted in order 
to avoid the inconvenience or difficulties which would 
result from a search and possible capture. 

Any concealment or misdescription, or device cal- Dece P U(,n - 
culated and intended by neutrals to deceive and to 
hamper belligerents in their undoubted right of search 
for contraband, will, while I sit in this court, weigh 
heavily against those adopting such courses when any 
presumptions or inferences have to be considered. 
Neutrals are expected to conduct their neutral trade 
during the war not only without having recourse to 
fraud, or false papers, but with candor and straightfor- 
wardness. As has been said by the American Supreme 
Court, "Belligerents are entitled to require of neutrals a 
frank and bona fide conduct." It will not be found 
against their interest to pursue such conduct; but in 
investigating attempts to mislead by misdescription or 
otherwise, care must be taken to ascertain who have 
taken part in such attempts, and to what extent. 

In the present case I find upon the facts that the mis- 
description of the rubber as "gum" in the manifest was 
due in the main to Gans & Co. — the charterers of the 
vessels. Copies of the invoices with the correct descrip- 
tion of rubber were given to Gans & Co. for the purpose of 
the manifest which was to be made out by them. Maurer 



88 INTERNATIONAL. LAW I DECISIONS AND NOTES. 

& Co. no doubt acquiesced in this because otherwise they 
would probably have lost the benefit of the freight con- 
tract which they had made early in October; but I do not 
find that the claimants, the consignees, ever suggested 
or took any part in this. I do not find that they were 
aware of the description used until after the Fridland 
sailed. There was read against them a passage in a 
cablegram of October 31, "Expect you informed Bruno 
(the insurer) everything shipped as gum." The explana- 
tion of Ullman that this was because of a cablegram he 
received on October 28 is, I think, sufficient. Similarly 
I do not find that they were responsible for the mis- 
description of their cargo on the Kim. 
ket. mar * I have examined the commercial documents, and con- 

sidered very carefully the cablegrams set out in Exhibit 
J. P. M. 1 (many of which, however, do not affect the 
claimants), and the letters and cablegrams exhibited to 
Ullman' s second affidavit — and even if they are approached 
in an attitude of suspicion created by some of the 
surrounding circumstances, I can not arrive at the infer- 
ence that the rubber was on its way to an enemy destina- 
tion when it was seized; on the contrary, my conclusion 
from the evidence is that the sale to Ullman, and the 
purchase and payment by him, were honest business 
transactions, and that he intended to add the rubber to 
his stock in his Denmark business, and to dispose of it 
in Scandinavia in the very profitable market described 
in his letters, which was created greatly by the stoppage 
to Scandinavia of all exports of rubber from or through 
Germany. 

A very full and strict undertaking was given on the 
part of Ullman & Co. in the course of these proceedings. 
That must be adhered to. I need not trouble further 
about other undertakings given in the course of this case, 
except to say that they must be adhered to. 

THE CLAIM OF W. T. BAIRD. 

This relates to 39 cases (29,771 pounds) of rubber 
shipped on the Kim on November 11 (about a fortnight 
after rubber was declared absolute contraband) by 
Baird, and consigned to Fritsch. 

It stands upon a different footing from the last, as the 
claimant is the shipper. There are three people con- 
cerned: Baird, and Frankfurter, in America, and Fritsch 
at Landskrona in Sweden. Fritsch was the German 



INTERNATIONAL LAW : DECISIONS AND NOTES. 89 

vice consul at Sweden, and a forwarding agent. Baird 
claims as the owner. 

The transaction is not made as clear as it could and 
should have been. Counsel at the hearing stated it thus : 

"Mr. Baird sold these 39 cases of rubber to Mr. Frank- 
furter, who was also a rubber broker in New York, and 
he in turn sold it to Mr Fritsch." 

The claimant, Baird, deposed that the contract f or Jj£g%$^ 
the sale of the said goods was made between Frankfurter ative - 
and the Rubber Trading Co., of which Baird was presi- 
dent; and that, at the time of such sale, he was requested 
by Frankfurter to make the shipment to W. Fritsch, 
"who (he says) was the principal for whom Frankfurter 
was acting. " Frankfurter exhibits an order which he 
received from Fritsch — pursuant to this order (according 
to his affidavit) he entered into a contract with Baird 
"for the purpose of the rubber." No contract or invoice 
has been produced; the only documents placed before 
the court are the letter from Fritsch to Frankfurter, and 
a copy of the bill of lading. Two bills of lading were 
given— both of these were sent to Fritsch, according to 
Baird's statement. He does not say by whom they 
were sent. Whether Fritsch dealt with them, or what 
has become of them, the court was not informed. Baird 
does not say that any right to dispose of the goods was 
reserved on the sale to Frankfurter, or to Fritsch, or 
when the two original bills of lading were sent. Frank- 
furter throws no light upon this; and Fritsch has not 
given any evidence or made any deposition. 

I am not satisfied that Baird has made out his claim 
to be owner of the goods, or that any property remained 
in him after the shipment. There are, moreover, some 
other matters to which I must advert in connection 
with the claim. As to the description of the rubber as 
"gum,'' he gave no explanation in his affidavit; but he 
allowed it to be understood as having been done in the 
ordinary course of business, for all he says about it is, 
"I have been engaged in buying and selling rubber for 
40 years in the city of New York, and I have always 
understood the terms 'gum' and 'rubber' to be inter- 
changeable terms in the trade, and have frequently 
known of rubber being described as 'gum.' " 

In a letter of January 28 he wrote that he could not 
give any instance of crude rubber having been shipped 
under the name of "gum." 



90 INTERNATIONAL, LAW I DECISIONS AND NOTES. 

Later on the Rubber Club of New York, of which he 
was a member, appears to have asked Mr. Baird to give 
them an explanation of the transaction. His answer 
took the form of a statement made and certified before 
a notary public on March 24, 1915. There he said the 
contract was entered into on October 29, 1914, with 
Frankfurter, and the goods were sold to him. Fritsch 
of Landskrona is not mentioned. Frankfurter is said 
to have given assurance that the rubber was for Danish 
consumption. Fritsch was a merchant in Sweden, and 
that is not the assurance he is said to have given. As to 
the way in which the rubber was described, he said that 
the instruction to his shipping clerk to ship it as "gum" 
was given by Frankfurter, and that he had since been 
told by Frankfurter that the Gans Line suggested that 
denomination. Frankfurter does not deal with any of 
this in his affidavit made two months later. Baird was 
therefore a party to this misleading description. 
traband er c ° a " Taking the whole circumstances into consideration, I 
am justified in drawing the inference that the rubber was 
on its way to enemy territory through Fritsch, the Ger- 
man consul; and even if the claimant had made out his 
claim to be the owner, I find that the rubber was con- 
fiscable as absolute contraband. 

AS TO THE CLAIM OF MARCUS & CO. 

1 This claim refers to 99 bales of hides (18,968 pounds) 
shipped on the Kim on November 11. 

Hides .were declared conditional contraband on Sep- 
tember 21, 1914. 

The consignors were Amsinck & Co., of New York, 
and the consignees Marcus & Co., of Copenhagen. The 
latter are hide merchants dealing largely with Hamburg. 
The claim alleges that the goods were purchased from 
Gold tree, Liebes & Co., of Santa Ana, El Salvador, on 
terms c.i.f. Copenhagen, cash to be paid on receipt of 
gocds. It was also alleged that the goods had been paid 
for by the claimants. No proof of payment was given; 
and it would be strange if the goods were paid for before 
seizure, when payment was only due on receipt of the 
goods. Goldtree, Liebes & Co. were also merchants at 
Hamburg. The goods were insured by Hamburg offices. 
On reference to the exhibit set out in J. P. M. 11, it 
will be seen that the claimants were a firm having active 
dealings, after the war, with Hamburg. 



t 



INTERNATIONAL, LAW! DECISIONS AND NOTES. 91 

Amsinck & Co., the consignors, were shown to have t j£ teroepted tot ~ 
sent under cover to a bank in Christiania a lot of letters 
to be sent on to Germany, addressed to various people 
in Hamburg and Berlin, which were to have been reposted 
as if they had been sent from Christiania. Among such 
letters, which were intercepted, was one to Gold tree, 
Liebes & Co., of Hamburg, of June 5, 1915, relating to 
this very parcel of hides, in which they express the hope 
that the goods have arrived, and refer to Goldtree's 
" friends in Copenhagen," meaning, without doubt, Mar- 
ens & Co., the claimants. 

No evidence was given as to what was done with the 
bill of lading. 

As the goods were consigned c.i.f. to Copenhagen and Title doubtful, 
were to be paid for on receipt of the goods, and as the 
goods were never received by the consignees, and no sat- 
isfactory evidence was given of the alleged payment, 1 
am not satisfied that the goods ever were the property of 
the claimants as alleged. Besides, the proper inference 
from such evidence as was adduced is, in my opinion, that 
Marcus & Co. in Copenhagen were merely intermediaries 
between Gold tree, Liebes & Co., of Santa Ana, and Gold- 
tree, Liebes & Co. of Hamburg, to whom the goods were 
really destined at the time of seizure. 

THE CLAIMS OF THE GUARANTY TRUST CO. OF NEW YORK. 

These are the last claims I have to deal with. They 
relate to wheat and flour on the A . Nobel, the B. Bjornson, 
and the Fridland. 

In the first, the Trust company are associated with 
Newman & Co.; in the second, with Norris & Co.; and 
in the third, partly with Norris & Co. 

The facts in these cases were not sufficiently placed ^f 60 * 8 Iasuffici - 
before the court; and there was no argument upon them 
on behalf of the Crown. 

They must be further dealt with by the Crown and the 
claimants before the court can dispose of them. 

I must accordingly adjourn them for further argument. 

The details of all the claims have now been set out. Twenty-nv* 

cases. 

I am very sorry it has taken so long, but it must be 
remembered that T had to deal with, not one case, but, 
I think, 25 cases. 
59650—24 7 



Lard as food. 



92 INTERNATIONAL LAW : DECISIONS AND NOTES. 

character of With regard to the general character of the cargoes, 
evidence was given by persons of experience that all the 
foodstuffs were suitable for the use of troops in the field; 
that some, e. g., the smoked meat or smoked bacon, were 
similar in kind, wrapping, and packing to what was sup- 
plied in large quantities to the British troops, and were 
not ordinarily supplied for civilian use; that others, e. g., 
canned or boiled beef in tins, were of the same brand 
and class as had been offered by Armour & Co. for the 
use of the British forces in the field; and that the packages 
sent by these ships could only have been made up for 
the use of troops in the field. As against this, there 
was evidence that goods of the same class had been or- 
dinarily supplied to and for civilians. 

As to the lard, proof was given that glycerine (which 
is in great demand for the manufacture of nitroglycerine 
for high explosives) is readily obtainable from lard. Al- 
though this use is possible, there was no evidence be- 
fore me that any lard had been so used in Germany; 
and I am of opinion that the lard comprised ought to be 
treated upon the footing of foodstuffs only. It is largely 
used in German army rations. 

As to the fatbacks (of which large quantities were 
shipped), there was also proof that they could be used 
for the production of glycerine. Mr. Perkin, in his 
affidavit in answer to that of Mr. George Stubbs, of the 
British Government laboratory (which dealt with lard 
and fatbacks as materials out of which glycerine was 
producible), confines his observations to lard; and passes 
by entirely what had been deposed as to fatbacks. In 
fact no evidence as against that of Mr. Stubbs was offered 
for the shippers of fatbacks. Mr. Nuttall, a deponent 
for one of them, Sulzberger & Sons Co., says the fat- 
backs shipped by them were not in a condition which 
was suitable for eating; but he may have meant only 
that they required further treatment before they be- 
come edible. 

Fatbacks an- There was no market for these fatbacks in Denmark. 

cipitis usus. 

The procurator general deposed as a result of inquiries 
that the Germans were very anxious to obtain fatbacks 
merely for the glycerine they contain. In these circum- 
stances it is not by any means clear that fatbacks should 
be regarded merely as foodstuffs in these cases, and in the 
absence of evidence to the contrary, it is fair to treat 



INTERNATIONAL LAW! DECISIONS AND NOTES. 93 

them as materials which might either be required as food, 
or for the production of glycerine. 

The convenience of Copenhagen for transporting goods 
to Germany need hardly be mentioned. It is in evidence 
that the chief trade between Copenhagen and Germany 
since the war was through Lubeck, Stettin, and Hamburg. 

The sea-borne trade of Lubeck has increased very Military bases, 
largely since the war. It was also sworn in evidence that 
Lubeck was a German naval base. Stettin is a garrison 
town, and is the headquarters of army corps. It has also 
shipbuilding yards where warships are constructed and 
repaired. It is Berlin's nearest seaport. It will be 
remembered that one of the big shipping companies 
asked a Danish firm to become nominal consignees for 
goods destined for Stettin. Hamburg and Altona had 
ceased to be the commercial ports dealing with commerce 
coming through the North Sea. They were headquarters 
of various regiments. Copenhagen is also a convenient 
port for communication with the German naval arsenal 
and fortress of Kiel and its canal, and for all places 
reached through the canal. These ports may properly 
be regarded, in my opinion, as bases of supply for the 
enemy, and the cargoes destined for these might on that 
short ground be condemned as prize; but I prefer, 
especially as no particular cargo can definitely be said 
to be going to a particular port, to deal with the cases 
upon broader grounds. 

Before stating the inferences and conclusions of fact, 
it will be convenient to investigate and ascertain the 
legal principles which are to be applied according to inter- 
national law, in view of the state of things as they were in 
the year 1914. 

While the guiding principles of the law must be fol- international 
lowed, it is a truism to say that international law, in 
order to be adequate, as well as just, must have regard to 
the circumstances of the times, including Ci the circum- 
stances arising out of the particular situation of the war, 
or the condition of the parties engaged in it;" vide the 
Jonge MargareikaP 

Two important doctrines familiar to international 
law come prominently forward for consideration; the 
one is embodied in the rule as to " continuous voyage," 
or continuous "transportation;" the other relates to the 
ultimate hostile destination of conditional and absolute 
contraband, respectively. 



« (1799) 1 C. Rob. 189; and Chancellor Kent's Commentaries, p. 139. 



94 INTERNATIONAL. LAW : DECISIONS AND NOTES. 

v<Jyage. tinuous ^ 10 doctrine of " continuous voyage" was first applied 
by the English prize courts to unlawful trading. There 
is no reported case in our courts where the doctrine is 
applied in terms to the carriage of contraband; but it 
was so applied and extended by the United States courts 
against this country in the time of the American Civil 
War; and its application was acceded to by the British 
Government of the day; and was, moreover, acted upon 
by the International Commission which sat under the 
treaty between this country and America, made at 
Washington on May 8, 1871, when the commission, com- 
posed of an Italian, an American, and a British delegate, 
unanimously disallowed the claims in the Peterhoff 33 , 
which was the leading case upon the subject of continuous 
transportation in relation to contraband goods. (The 
other well known American cases — e. g., the Stephen 
Hart, 34 the Bermuda 35 and the Springbok , se — considered 
and applied the doctrine in relation to attempted breaches 
of the blockade.) 

I am not going through the history of it, but the doc- 
trine was asserted by Lord Salisbury at the time of the 
South African War with reference to German vessels 
carrying goods to Delagoa Bay, and as he was dealing with 
Germany, he fortified himself by referring to the view of 
Bluntschli as the true view as follows: "If the ships or 
goods are sent to the destination of a neutral port only 
the better to come to the aid of the enemy, there will be 
contraband of war, and confiscation will be justified.' 7 

It is essential to appreciate that the foundation of the 
law of contraband, and the reason for the doctrine of con- 
tinuous voyage which has been grafted into it, is the 
right of a belligerent to prevent certain goods from 
reaching the country of the enemy for his military use. 

Neutral traders, in their own interest, set limits to the 
exercise of this right as far as they can. These con- 
flicting interests of neutrals and belligerents are the 
causes of the contests which have taken place upon the 
subject of contraband and continuous voyages. 

A compromise was attempted by the London Confer- 
ence in the unratified declaration of London. The doc- 
s' 1 (1866) 5 Wall. 28. 
34 Blatch. Pr. Cas. 387. 
P (1865) 3 Wall. 514. 
»(l86fl) 5 Wall. 1. 



INTERNATIONAL LAW: DECISIONS AND NOTES. 95 

trine of continuous voyage or continuous transportation Ij 2 ration of 
was conceded to the full by the conference in the case of 
absolute contraband, and it was expressly declared that 
"it is immaterial whether the carriage of the goods is 
direct, or entails transshipment, or a subsequent transport 
by land." 

As to conditional contraband, the attempted com- 
promise was that the doctrine was excluded in the case 
of conditional contraband, except where the enemy contraband, 
country had no seaboard. As is usual in compromises, 
there seems to be an absence of logical reason for the 
exclusion. If it is right that a belligerent should be 
permitted to capture absolute contraband proceeding by 
various voyages or transport with an ultimate destina- 
tion for the enemy territory, why should he not be 
allowed to capture goods which, though not absolutely 
contraband, become contraband by reason of a further 
destination to the enemy Government or its armed 
forces ? And with the facilities of transportation by sea 
and by land which now exist the right of a belligerent to 
capture conditional contraband would be of a very 
shadowy value if a mere consignment to a neutral port 
were sufficient to protect the goods. It appears also to 
be obvious that in these days of easy transit, if the 
doctrine of continuous voyage or continuous transporta- 
tion is to hold at all, it must cover not only voyages from 
port to port at sea, but also transport by land until the 
real, as distinguished from the merely ostensible, destina- 
tion of the goods is reached. 

In connection with this subject, note may be taken an ^repi a ^olen- 
of the communication of January 20, 1915, from Mr. ator stoae - 
Bryan, as Secretary of State for the United States 
Government, to Mr. Stone, of the Foreign Relations Com- 
mittee of the Senate. It is, indeed, a State document. 
In it the Secretary of State, dealing with absolute and 
conditional contraband, puts on record the following as 
the views of the United States Government : 

"The rights and interests of belligerents and neutrals 
are opposed in respect to contraband articles and trade. 
* * * The record of the United States in the past 
is not free from criticism. When neutral, this Gov- 
ernment has stood for a restricted list of absolute and con- 
ditional contraband. As a belligerent, we have contended 
for a liberal list, according to our conception of the 
necessities of the case. 



96 INTERNATIONAL LAW I DECISIONS AND NOTES. 

"The United States has made earnest representations 
to Great Britain in regard to the seizure and detention of 
all American ships or cargoes bona fide destined to neutral 
ports. * * * It will be recalled, however, that 
American courts have established various rules bearing 
on these matters. The rule of 'continuous voyage' has 
been not only asserted by American tribunals, but ex- 
tended by them. They have exercised the right to deter- 
mine from the circumstances whether the ostensible was 
the real destination. They have held that the ship- 
ment of articles of contraband to a neutral port ' to order' 
(this was of course before the order in council of October 
29), from which, as a matter of fact, cargoes had been 
transshipped to the enemy, is corroborative evidence that 
the cargo is really destined to the enemy instead of to the 
neutral port of delivery. It is thus seen that some 
of the doctrines which appear to bear harshly upon 
neutrals at the present time are analogous to or out- 
growths from policies adopted by the United States when 
it was a belligerent. The Government, therefore, can 
not consistently protest against the application of rules 
which it has followed in the past, unless they have not 
been practiced as heretofore. * * * The fact that 
the commerce of the United States is interrupted by Great 
Britain is consequent upon the superiority of her navy 
on the high seas. History shows that whenever a 
country has possessed the superiority our trade has been 
interrupted, and that few articles essential to the prose- 
cution of the war have been allowed to reach its enemy 
from this country." 

It is not necessary to dilate upon the history of the 
doctrine in question. 

I have no hesitation in pronouncing that, in my view, 
the doctrine of continuous voyage, or transportation, both 
in relation to carriage by sea and to carriage over land, 
had become part of the law of nations at the commence- 
ment of the present war, in accordance with the princi- 
ples of recognized legal decisions, and with the view of 
the great body of modern jurists, and also with the prac- 
tice of nations in recent maritime warfare. 
Ultimate desti- The re sult is that the court is not restricted in its 
vision to the primary consignments of the goods in these 
cases to the neutral port of Copenhagen; but is entitled, 
and bound, to take a more extended outlook in order 
to ascertain whether this neutral destination was merely 



nation. 



INTERNATIONAL LAW : DECISIONS AND NOTES. 97 

ostensible and, if so, what the real ultimate destination 
was. 

As to the real destination of a cargo, one of the chief 
tests is whether it was consigned to the neutral port to 
be there delivered for the purpose of being imported into 
the common stock of the country. This test was ap- 
plied over a century ago by Sir William Grant in the 
Court of Appeals in prize cases in the case of the William. 37 
It was adopted by the United States Supreme 
Court in their unanimous judgment in the Bermuda , 38 
where Chase, C. J., in delivering the judgment, said: 
" Neutrals may convey in neutral ships, from one neutral 
port to another, any goods, whether contraband of war 
or not, if intended for actual delivery at the port of 
destination, and to become part of the common stock 
of the country or of the port." 

Another circumstance which has been regarded as im- 
portant in determining the question of real or ostensible 
destination at the neutral port was the consignment "to 
order or assigns" without naming any consignee. 

In the celebrated case of the Springbok™ the Supreme 
Court of the United States acted upon inferences as to 
destination (in the case of blockade) on this very ground. 
The part of the judgment dealing with the matter is 
as follows: 

"That some other destination than Nassau was in- 
tended may be inferred from the fact that the consign- 
ment shown by the bills of lading, and the manifest 
was to order or assigns. Under the circumstances of 
this trade, such a consignment must be taken as & or §!^K8Ss to 
negation that any such sale was intended to be made 
there; for had such sale been intended it is most likely 
that the goods would have been consigned for that pur- 
pose to some established house named in the bills of 
lading." 

The same circumstance was also similarly dealt with in 
the Bermuda 40 and in the Peterhoff.* 1 

I am not unmindful of the argument that consign- 
ment "to order" is common in these days. But a simi- 
lar argument was used in the Springbok™, supported 
by the testimony of some of the principal brokers in 

3' (1806) 5 C Rob. 385. 883 Wall. 514. * 5 Wall. 1. <o 3 Wall. 514. 

« 5 Wall, at p. 25; and see Blatch. Pr. Cas. 463, at p. 540. 



98 INTERNATIONAL LAW : DECISIONS AND NOTES. 

London, to the effect that a consignment "to order or 
assign" was the usual and regular form of consignment 
to an agent for sale at such a port as Nassau. The 
British Government was petitioned to intervene for the 
shippers; but upon this point the British foreign office 
said that "no doubt the form was usual in the time of 
peace, but that a practice which might be perfectly regu- 
lar in time of peace under the municipal regulations of 
a particular State, would not always satisfy the law of 
nations in time of war, more particularly when the voy- 
age might expose the ship to the visit of belligerent 
cruisers;" and added that, "having regard to the very 
doubtful character of all trade ostensibly carried on at 
Nassau during the war in the United States, and to many 
other circumstances of suspicion before the court, Her 
Majesty's Government are not disposed to consider 
the argument of the court upon this point as otherwise 
than tenable." 

The argument still remains good, that if shippers, 
after the outbreak of war, consign goods of the nature of 
contraband to their own order without naming a con- 
pidon^ ° f 8as " s ig ne e> it may be a circumstance of suspicion in consider- 
ing the question whether the goods were really intended 
for the neutral destination, and to become part of the 
common stock of the neutral country, or whether they 
had another ultimate destination. Of course, it is not 
conclusive. The suspicion arising from this form of 
consignment during war might be dispelled by evidence 
produced by the shippers. It may be here observed that 
some point was made that in many of the consignments 
the bills of lading were not made out "to order" simplic- 
iter, but to branches or agents of the shippers. That 
circumstance does not, in my opinion, make any material 
difference. 

Other matters relating to destination will be discussed 
upon the second branch of the case, namely, whether the 
goods were destined for Government or military use. 
Wherever destination comes in question, certainty as to 
abied^SnatKn!'' ^ * s seldom possible in such cases as these; "highly 
probable destination" is enough in the absence of satis- 
factory evidence for the shippers; see per Lord Stowell 
in the Jonge Margaretha. 42 

Upon this branch of the case — for reasons which have 
been given when dealing with the consignments generally, 

« 1 C Rob. 189, at p. 192. 



INTERNATIONAL LAW : DECISIONS AND NOTES. 99 

and when stating the circumstances with respect to each 
claim — I have no hesitation in stating my conclusion 
that the cargoes (other than the small portions acquired 
by persons in Scandinavia whose claims are allowed) 
were not destined for consumption or use in Denmark or 
intended to be incorporated into the general stock of 
that country by sale or otherwise; that Copenhagen was 
not the real bona fide place of delivery; but that the 
cargoes were on their way at the time of capture to 
German territory as their actual and real destination. 

The second branch of the case raises the question 
whether the goods, which I have decided were on their 
way to German territory, were destined further for the 
use of the German Government or departments or for 
military use by the troops, or other persons actually 
engaged in warlike operations, or should be presumed to 
be so destined in the circumstances. 

As a preliminary, it becomes necessary to consider the 
two orders in council of August 20 and October 29, 1914. 

It was contended for the claimants that before the 
seizure of the cargoes on the first three vessels, and while 
they were still on their respective voyages, the order in 
council of August 20 (even if it was binding on the 
court) had been rendered inoperative by the repeal con- 
tained in the order of October 29. 

It was further contended that the two orders in council in^SSSdif ° rd * rs 
purporting to give effect with certain additions and 
modifications to the unratified "Declaration of London" 
had no binding effect upon this court and ought to be 
disregarded. 

As to the first of these two contentions, no doubt if 
the first order had affected the substantive rights of the 
neutral, e. g., if it had declared an article as absolute con- 
traband, which by the repealing order had been removed 
from the list of contraband before capture, it could not 
be said that the order had remained operative so as to 
justify the seizure of the article; but in reality the only 
change (material to these cases) which the order pur- 
ported to make was in the nature of alteration of practice 
as to evidence — namely, by adding certain presumptions 
to those contained in article 34 of the declaration of 
London; and all these presumptions, whether set up in 
the interest of the captor or against him, are rebuttable 
(see M. Renault's report on the declaration). The order 
had proclaimed to the neutral owners of the cargoes 



100 INTERNATIONAL LAW I DECISIONS AND NOTES. 

before the voyages commenced how in practice as matter 
of evidence and proof cargoes seized would be dealt with, 
and it might fairly be argued that they could not com- 
plain if their cases were treated in accordance with the 
order; but it is not necessary for me to pronounce any 
decision upon the point. I will, for the purpose of this 
case, assume that the order of August 20 had ceased to 
have any effect upon the promulgation of the subse- 
quent order. The result is that cases relating to the 
A. Nobel, B. Bjornson, and the Fridland must be de- 
cided in accordance with the rules of international law. 

The order of October 29 applies, however, to all the 
cargoes on the Kim. 

As to the contention that the order is not binding on 
this court, I expressed my views on the general question 
of the binding character of orders in council upon the 
prize court in the case of the Zamora. 4 * I do not wish 
to detract anything from what I then said; nor do I 
deem it necessary at present to add anything as to the 
general principles; but as to this order, so far as it 
affects questions arising in these proceedings, it is right 
to point out that no provision in it can possibly be said 
to be in violation of any rule or principle of international 
law. It is true that in a matter of real substance it 
alters the proposed compromise incorporated in article 
35 of the declaration of London, whereby, if the declara- 
tion had been ratified, the doctrine of continuous voyage 
would have been excluded for conditional contraband. 
The provision in article 35 was described by Sir Robert 
Finlay (counsel for several of the claimants) as "an 
innovation in international law as hitherto recognized 
in the United States and by Great Britain and other 
States, introducing an innovation of the first importance 
v©M^md°oon-ky excluding the doctrine of continuous voyage in the 

ditionai contra- case f conditional contraband." 
band. 

What the order in council did, therefore, was to prevent 
the innovation. In this regard it therefore proceeded, 
not in violation of, but upon the basis of, the existing 
international law upon the subject. 

It may be well to note, and to record, that at the 
London Conference which produced the declaration all 
the Allied Powers engaged in this war, and also the 
United States, had been in favor of continuing to apply 

«• June 21, 1915, 31 Times L. R., 513. Under appeal to the Judicial Committee of 
the Privy Council. 



INTERNATIONAL LAW I DECISIONS AND NOTES. 101 

the doctrine of continuous voyage or continuous trans- 
portation to conditional as well as to absolute contra- 
band, a doctrine which, as we have seen, was nurtured 
and specially favored by the courts of the United States. 

As to the modifications regarding presumptions and 
onus of proof, as, for instance, where goods are consigned 
u to order" without naming a consignee, these are matters 
really affecting rules of evidence and methods of proof 
in this court, and I fail to see how it is possible to contend 
that they are violations of any rule of international law. 

The effect of the order in council is that, in addition 
to the presumptions laid down in article 34 of the " Decla- 
ration of London/ 7 a presumption of enemy destination 
as defined by article 33 shall be presumed to exist if the 
goods are consigned to or for an agent of the enemy B u rdeaof P root 
State, or to a person in the enemy territory, or if they 
are consigned u to order/' or if the ship's papers do not 
show who the consignee is; but in the latter cases the 
owners may, if they are able, prove that the destination 
is innocent. 

All the goods claimed by the shippers on the Kim were 
consigned to their own order, or to the order of their 
agents (which is the same thing), and not to any inde- 
pendent consignee; and they have all entirely failed to 
discharge the onus which lies upon them to prove that 
their destination was innocent. 

There was some suggestion that liability to capture 
in the declaration of London and order in council did 
not mean liability to confiscation or condemnation. On 
reference to the various provisions as to absolute and 
conditional contraband, it is clear that it is used in that 
sense. 

I am of opinion that under the order in council the J *p» v* 6 ** or * 

it. n i • der in council. 

goods claimed by all the shippers on the Kim were con- 
fiscable as lawful prize. 

I now proceed to consider the confiscability of the 
cargoes on all the four vessels, apart entirely from the 
operation of the order in council upon the Kim cargoes. 

Having decided that the cargoes, though ostensibly p r iz« apart 
destined for Copenhagen, were in realty destined for^Si. (>r(i8r ia 
Germany, the question remains whether their real ultimate 
destination was for the use of the German Government 
or its naval or military forces. 

If the goods were destined for Germany, what are the 
facts and the law bearing upon the question whether 



102 INTERNATIONAL LAW: DECISIONS AND NOTES. 

they had the further hostile destination for the German 
Government for military use? 

In the first place, as has already been pointed out, they 
were goods adapted for such use; and further, in part, 
adapted for immediate warlike purposes in the sense 
that some of them could be employed for the production 
of explosives. They were destined, too, for some of the 
nearest German ports like Hamburg, Lubeck, and Stettin, 
where some of the forces were quartered, and whose con- 
nection with the operations of war has been stated. It is 
by no means necessary that the court should be able to 
fix the exact port; see the Dolphin; 4 * the Pearl; 4 * the 
Peterhoff. 4 * 

Regard must also be had to the state of things in 
Germany during this war in relation to the military 
forces, and to the civil population, and to the method 
described in evidence which was adopted by the Gov- 
ernment in order to procure supplies for the forces. 

The general situation was described by the British 
Foreign Secretary in his note to the American Govern- 
ment on February 10, 1915, as follows: 
tw^n^ivi^and "The reason for drawing a distinction between food- 
miutary use. stuffs intended for the civil population and those for the 
armed forces or enemy Government disappears when the 
distinction between the civil population and the armed 
forces itself disappears. In any country in which there 
exists such a tremendous organization for war as now 
obtains in Germany, there is no clear division between 
those whom the Government is responsible for feeding 
and those whom it is not. Experience shows that the 
power to requisition will be used to the fullest extent in 
order to make sure that the wants of the military are 
supplied, and however much goods may be imported for 
civil use it is by the military that they will be consumed 
if military exigencies require it, especially now that the 
German Government have taken control of all the 
foodstuffs in the country." I am not saying that the 
last sentence is applicable to the circumstances of this 
case. * * * 

"In the peculiar circumstances of the present struggle 
where the forces of the enemy comprise so large a pro- 
portion of the population, and where there is so Jit tie 

« Ante, p. 251. < 5 (1866) 5 Wall. 574. «5 Wall. 28. at p. 59. 



INTERNATIONAL, LAW ! DECISIONS AND NOTES. 103 

evidence of shipments on private as distinguished from 
Government account, it is most reasonable that the 
burden of proof should rest upon claimants. " 

It was given in evidence that about 10,000,000 of men 
were either serving in the German Army, or dependent 
upon or under the control of the military authorities of 
the German Government, out of a population of between 
sixty-five and seventy millions of men, women, and 
children. Of the food required for the population, it 
would not be extravagant to estimate that at least one- 
fourth would be consumed by these 10,000,000 adults. 

Apart altogether from the special adaptability of these ^l^^J^}', 
cargoes for the armed forces, and the highly probable 
inference that they were destined for the forces, even 
assuming that they were indiscriminately distributed be- 
tween the military and civilian population, a very large 
proportion would necessarily be used by the military 
forces. 

So much as to the probable ultimate destination in fact 
of the cargoes. 

Now as to the question of the proof of intention on 
the part of the shippers of the cargoes. 

It was argued that the Crown as captors ought to show 
that there was an original intention by the shippers to 
supply the goods to the enemy Government or the armed 
forces at the inception of the voyage as one complete 
commercial transaction, evidenced by a contract of sale 
or something equivalent to it. 

It is obvious from a consideration of the whole scheme . Proof of int <«- 

tion. 

of conduct of the shippers that if they had expressly 
arranged to consign the cargoes to the German Govern- 
ment for the armed forces, this would have been done in 
such a way as to make it as difficult as possible for 
belligerents to detect it. 

If the captors had to prove such an arrangement 
affirmatively and absolutely, in order to justify capture 
and condemnation, the rights of belligerents to stop 
articles of conditional contraband from reaching the 
hostile destination would become nugatory. 

It is not a crime to dispatch contraband to belligerents. 
It can be quite legitimately sent subject to the risk of 
capture; but the argument proceeded as if it were essential 
for the captors to prove the intention as strictly as would 
be necessary in a criminal trial; and as if all the shippers 
need do was to be silent, to offer no explanation, and to 



104 INTERNATIONAL, LAW! DECISIONS AND NOTES. 

adopt the attitude toward the Crown, "Prove our hostile 
intention if you can." 

In the first place, it may be observed that it is not neces- 
sary that an intention at the commencement of the 
voyage should be established by the captors either abso- 
lutely or by inference. 

In the Bermuda 47 the Chief Justice of the Supreme 
Court of the United States, in referring to the decision of 
Sir William Grant in the William 48 , said : 

"If there be an intention, either formed at the time of 
the original shipment, or afterwards, to send the goods 
forward to an unlawful destination, the continuity of the 
voyage will not be broken, as to the cargo, by any trans- 
actions at the intermediate port." 
d^tiSS?ra. as t0 H fe* no doubt, incumbent upon the captors in the 
first instance to prove facts from which a reasonable 
inference of hostile destination can be drawn, subject to 
rebuttal by the claimants. 

Lord Granville as foreign secretary in 1885, in a note 
to M. Waddington (the French ambassador) which had 
reference to the question of rice being declared contra- 
band by the French Government in relation to China r 
said: 

"There must be circumstances relative to any par- 
ticular cargo, or its destination, to displace the presump- 
tion that articles of food are intended for the ordinary use 
of life, and to show, prima facie at all events, that they 
are destined for military use, before they could be treated 
as contraband." 

And Lord Lansdowne as foreign secretary in 1904, in a 
note to the British ambassador at St. Petersburg, stated 
the British view thus: 

"The true test appears to be whether there are cir- 
cumstances relating to any particular cargo to show that 
it is destined for military or naval use." 

These statements, so qualified, it will be noted, were 
made when this country was making representations 
against the action of foreign Governments concerning 
conditional contraband. Therefore they were put as 
high, I assume, as it was thought they properly could 
be put. 

So far as it is necessary to establisk intention on the 
part of the shippers, it appears to me to be beyond ques- 

« 3 Wall. 514. < 8 5 C. Bob. 385. 



INTERNATIONAL LAW. DECISIONS AND NOTES. 105 

tion that it can be shown by inferences from surrounding 
circumstances relating to the shipment of and dealings 
with the goods. 

Cargoes are inanimate things, and the}^ must be sent 
on their way by persons. If that is all that was meant 
by counsel for the claimants, when they argued that 
" intention ; ' must be proved, their contention may be 
conceded. But it need not be an ''intention" proved 
strictly to have existed at the beginning of the voyage 
or as an obligation under a definite commercial bargain. 
If at the time of the seizure the goods were in fact on 
their way to the enemy Government or its forces as their 
real ultimate destination, by the action of the shippers, 
whenever the project was conceived, or however it was 
to be carried out; if, in truth, it is reasonably certain . 
that the shippers must have known that that was the real 
ultimate destination of the goods (apart of course from 
any genuine sale to be made at some intermediate place) , 
the belligerent had a right to stop the goods on their way 
and to seize them as confiscable goods. 

In the circumstances of these cases, especially in view 
of the opportunity given to the claimants, who possess 
the best and fullest knowledge of the facts, to answer the 
cases made against them, any fair tribunal, like a jury r 
or an arbitrator, whose duty it was to judge facts, not 
only might but almost certainly would come to the con- 
clusion that at the time of the seizure the goods which 
remained the property of the shippers were, if not as to 
the whole, at any rate as to a substantial proportion of 
them at the time of seizure on their way to the enemy for 
its hostile uses. The facts in these cases, in my opinion, 
more than amply satisfy the " highly probable destina- 
tion" spoken of by Lord Stowell. 

Before I conclude I will make reference to an opinion 
expressed, toward the end of last year, by a body of men 
eminent as students and expositors of international law 
in America, in the editorial comment in the American 
Journal of International Law, to which my attention was 
called by the law officers. Amongst them I need only 
name Mr. Chandler Anderson, Mr. Robert Lansing, Mr. 
John Bassett Moore, Mr . Theodore Woolsey, and Mr. 
James Brown Scott. 
It is as follows : 

"Ina war in which the nation is in arms, where every 
able-bodied man is under arms and is performing military 



106 INTERNATIONAL, LAW! DECISIONS AND NOTES. 

duty, and where the noncombatant population is organ- 
ized so as to support the soldiers in the field, it seems 
likely that belligerents will be inclined to consider desti- 
nation to the enemy country as sufficient, even in the 
case of conditional contraband, especially if the Govern- 
ment of the enemy possesses and exercises the right of 
confiscating or appropriating to naval or military uses 
the property of its citizens or subjects of service to the 
armies in the field." 

I cite this, not of course as any authority, but as show- 
ing how these eminent American jurists acknowledged 
that international law mu&t have regard to the actual 
circumstances of the times. 

I have not in this judgment followed the course thus 
indicated by them as a likely and reasonable one in the 
present state of affairs. I have preferred to proceed on 
the lines of the old recognized authorities. 

I wish also to note the opinion recently expressed by 
the Hamburg prize court in the case of the Maria, de- 
cided in April last, where goods consigned from the 
United States to Irish ports were laden upon a Dutch 
vessel. 
German case. I refer to it, not because I look upon it as profitable 
or helpful (on the contrary, I agree with Sir R. Finlay 
that it should rather be regarded as "a shocking ex- 
ample"), but because it is not uninteresting as an ex- 
ample of the ease with which a prize court in Germany 
" hacks its way through" hona fide commercial transac- 
tions when dealing with foodstuffs carried by neutral 
vessels. 

Be it remembered, too, that the court was dealing with 
wheat which was shipped from America before the war, 
and which had also before the war been sold in the ordinary 
course of business to well-known British merchants, R. & 
H.Hall (Ltd.). 

This is what the Hamburg court said : 

" There is no means of ascertaining with the least 
certainty what use the wheat would have been put to at 
the arrival of the vessel in Belfast, and whether the 
British Government would not have come upon the scene 
as purchaser, even at a very high price, and in this con- 
nection it must also be borne in mind that the bills of 
lading were made out to order, which greatly facilitated 
the free disposal of the cargo. That at the time of the 
conclusion of the contract concerning the acquisition of 



INTERNATIONAL LAW : DECISIONS AND NOTES. 107 

the wheat on the part of R. & H. Hall (Ltd.), the possi- 
bility of using the same for war purposes had, perhaps, 
not been contemplated does not affect the question what 
actual use would have been made of the cargo of wheat 
after the outbreak of war in October, 1914. " 

For the many reasons which I have given in the course 
of this judgment and which do not require recapitulation, 
or even summary, I have come to the clear conclusion 
from the facts proved, and the reasonable and, indeed, fro ^fac C ts and "to- 
irresistible inferences from them, that the cargoes ferences. 
claimed by the shippers as belonging to them at the time 
of seizure were not on their way to Denmark to be in- 
corporated into the common stock of that country b}^ 
consumption, or bona fide sale, or otherwise: but, on the 
contrary, that they were on their way not only to German 
territory, but also to the German Government and their 
forces for naval and military use as their real ultimate 
destination. 

To hold the contrary would be to allow one's eyes to be 
filled by the dust of theories and technicalities, and to 
be blinded to the realities of the case. 

Even if this conclusion were only accurate as to a sub- 
stantial proportion of the goods, the whole would be 
affected, because — 

" Contraband articles are said to be of an infectious 
nature, and they contaminate the whole cargo belonging 
to the same owners. The innocence of any particular 
article is not usually admitted to exempt it from the 
general confiscation." (Kent's Commentaries, 12th ed., 
by Holmes, J., p. 142.) (See to the same effect the 
Springbok** and the Peterhoff 50 ) . 

The declaration of London (art. 42) is to the same 
effect; and M. Renault's report on it is: 

The owner of the contraband is punished in the first 
place by the condemnation of his contraband property, 
and in the second by that of the goods, even if innocent, 
which he may possess on board the same vessel." 

It only remains, to conclude these long and troublesome 
cases, to state the results as applied to each of the claims : 

I disallow the claims of Morris & Co., Armour & Co., Decision. 
Hammond & Co. (with Swift & Co.), Sulzberger & Sons 
Co., Pay & Co., Brodr Levy, Elwarth, Buch & Co., Hansen, 

« (1863) Blatch. Pr. Cas. 434, at p. 451. * (1866) 5 Wall. 28, at p. 59. 

59650—24 8 



108 INTERNATIONAL LAW : DECISIONS AND NOTES. 

Pedersen, Henriques and Zoydner, Korsor Fabrik, Dania 
Fabrik, Valeur, Baird, and Marcus & Co., and pronounce 
condemnation as prize of the goods comprised in them or 
of their proceeds, if sold. 

I allow the claims of Cudahy & Co., the Provision Im- 
port Co., Christensen & Thoegersen, Segelcke, Frigast 
Bunchs Fed., Loehr, and Ullman & Co., and order the 
goods comprised in them or the net proceeds thereof, if 
sold, to be released to the respective claimants. 

Stay pending appeal within six weeks in respect of 
claims disallowed. Costs to be secured to the extent of 
5,0001. to be allocated between the various appellants. 
The cases of the ships themselves to stand over. 



'HEINA" 



vapeur norvegien capture en mer le 13 septembre 1914 par le croiseur 

Conde. 51 

CONSEIL DES PRISES. 

Decision du 29 septembre 1915. 

Au NOM du Peuple francajs, 

Le Conseil des Prises a rendu la decision suivante, 
entre : 

D'une part, le sieur Th. Olsen, en sa quality de capitaine 
du vapeur norvegien Heina du port de Bergen (Norvege), 
capture, le 13 septembre 1914, par le croiseur de la 
Republique Conde et conduit a Fort-de-France, et la 
soci^te" norvegienne par actions "J. Ludwig Mowinckel 
Dampskibsselskap," dont le siege est a Bergen, proprie- 
taire dudit navire et representee par le sieur J. Ludwig 
Mowinckel ; 

D'autre part, le Ministre de la Marine agissant au 
nom et pour le compte des capteurs et de la Caisse des 
Invalides de la Marine; 
Documents. Vu la lettre du Ministre de la Marine, en date a Paris 

du 3 mars 1915, enregistree au secretariat du Conseil des 
Prises, le 15 mars 1915, faisant envoi du dossier de 
l'instruction concernant la capture, pour transport de 
contrebande de guerre et assistance hostile, du vapeur 
norvegien Heina par le crosieur Conde, le 13 septembre 
" 1914, et demandant que la validite de ladite capture soit 
prononcee; 

« Decision inseree dans le Journal officio! du 7 novembre 1915. , 



INTERNATIONAL, LAW I DECISIONS AND NOTES. 109 

Vu la lettre du Ministre de la Marine, en date du 28 
mars 1915, avisant le Conseil que Parmateur a ete autorise 
a reprendre la disposition de son navire moyennant le 
depot, a la Caisse des Invalides de la Marine de la somme 
de 675,000 francs, tous droits reserves: 

Vu les pieces et documents composant le dossier, et 
notamment : 

1° Le proces-verbal de capture dresse le 13 septembre 
1914, ensemble l'inventaire des papiers de bord, l'inven- 
taire du navire, celui du chargement et celui des effets et 
articles appartenant au capitaine et a 1' equipage; 

2° Les pieces de bord saisies a bord du Heina, lors de 
la capture, specialement le manifeste de chargement, le 
role d'equipage et la patente de sante delivree par le 
consul d'Allemagne, a la Guayra, le 10 septembre 1914; 

3° Le journal de bord, la charte-partie du 8 octobre 
1913 et la correspondance commerciale remise aux 
autorites mari times francaises, a Fort-de-France, le 16 
septembre 1914; 

4° La note du commandant du Conde au Gouverneur 
de la Martinique, en date du 15 septembre 1914; 

5° La protestation du capitaine du Heina en date, a 
Fort-de-France, du 16 septembre 1914; 

6° Les rapports du chef de Service des Prises a Fort- 
de-France, en date des 19 et 30 septembre 1914; 

7° Les proces-verbaux d'interrogatoire du capitaine et 
des principaux de Y equipage en date, a Fort-de-France, 
des 18, 22 et 24 septembre 1914; 

8° La lettre du Ministre de France au Venezuela en 
date du 28 septembre 1914; 

9° Le rapport du commandant du Conde en date du 
22 Janvier 1915; 

10° Le rapport supplemental du commandant du 
Conde j du 10 juillet 1915, enregistre au secretariat du 
Conseil des Prises, le 10 aout 1915; ensemble le graphique, 
1'extrait de signaux et les journaux joints; 

11° La lettre du Ministre des colonies, du 27 avril 1915, 
enregistree le 3 mai 1915; 

Vu Pavis insere au Journal officiel du 16 mars 1915, 
ensemble l'avis donne au proprietaire du Heina; 

Vu le memoire presente par M e Morillot, avocat au 
Conseil d'fit^t, au nom de J. Ludwig Mowinckel, ledit 
memoire enregistre au secretariat du Conseil des Prises, 
le 22 avril 1915 et concluant a voir declarer non valable, 
a raison du lieu de sa capture, la prise du vapeur Heina; 



110 IXTKKXATloXAI, LAW : DECISIONS AXD NOTES. 

dire que la caution de 675,000 francs, versee par Pexpo- 
sant pour la mise en liberte du vapeur, sera restituee a 
l'exposant avec inte>6ts du jour du versement au jour 
du remboursement de ladite caution; subsidiairement 
ordonner la restitution de la caution dont il s'agit a raison 
de la bonne foi de l'exposant; plus subsidiairement encore 
declarer a toutes fins utiles que l'exposant a ete dans 
l'ignorance du transport illicite qui a motive la saisie; 
ensemble les pieces jointes ou textuellement citees audit 
memoire, et specialement la lettre du capitaine Th. Olsen, 
en date, a Fort-de-France, du 18 septembre 1914, et 
l'affidavit de J. L. Mowinckel, en date, a New- York, du 
16 octobre 1914; 

Vu les observations complementaires audit memoire 
en regis trees au secretariat du Conseil des Prises, le 23 
septembre 1915; 

Vu les conclusions du commissaire du Gouvernement 
tendant a ce qu'il plaise au Conseil decider: 

1° Apres avoir reconnu a M. Mowinckel qualite pour 
soutenir que la capture du vapeur Heina aurait ete 
effectuee dans les eaux territoriales danoises, que la cap- 
ture de ce navire et de sa cargaison est non valable comme 
ayant ete effectuees dans lesdites eaux territoriales; 

2° Que TEtat soit condamne a rembourser la somme 
de 675,000 francs verses par M. Mowinckel pour obtenir 
la restitution provisoire du batiment et a rendre la car- 
gaison a ceux qui justifieront y avoir droit, mais en 
retenant, dans les deux cas, les sommes representant les 
frais et le montant des depenses qu'a en trainees la 
capture; 

3° Que ia demande de M. Mowinckel a fin d'allocation 
des interets de la somme versee par lui soit rejetee; 

Vu les arretes du 6 germinal an VIII et du 2 prairial 
an XI; 

Vu les decrets des 9 mai 1859 et 28 novembre 1861; 

Vu le decret du 2 d6cembre 1910, qui a promulgue la 
Convention XIII de La Haye du 18 octobre 1907 con- 
cernant les droits et devoirs des puissances neutres en 
cas de guerre maritime; 

Vu le decret du 25 aout 1914 declarant applicable, au 
cours de la presente guerre, la declaration signee a 
Londres le 26 f6vrier 1909: 

Oui M. Rouchon-Mazerat, membre du Conseil, en son 
rapport, et M. Chardenet, commissaire du Gouvernement, 
en ses observations a l'appui de ses conclusions; 



INTERNATIONAL LAW I DECISIONS AND KFOTKS. Ill 

Le Conseil, apres en avoir deliber6, 

En ce qui touche la validite de la capture : 

Considerant qu'a la date du 13 septembre 1914, e t ( J*J tementofthe 
suivant proces-verbal en date dudit jour, le vapeur 
norvegien Heina a 6te capture pour transport de con- 
trebande de guerre et assistance hostile, par le croiseur de 
la R6publique Conde, au large de Pile danoise de Saint- 
Thomas (Antilles) ; 

Considerant que, par decision du Ministre de la Marine, 
port£e a la connaissance du Conseil par lettre du 28 mars 
1915, le proprietaire du navire capture a ete autorise* 
a deposer a la Caisse des Invalides de la Marine une somme 
de francs: 675,000 en representation de la valeur dudit 
navire, lequel a ete remis des lors a sa disposition, tous 
droits reserves; 

Considerant qu'il appert, taut des pieces saisies a bord 
que des documents verses aux debats, et notamment des 
declarations du proprietaire du navire et du capitaine 
&ux-m eTnes, que le vapeur Heina, par suite de divers 
affretements successifs, voyageait, le 13 septembre 1914, 
en execution d'une charte-partie passee le 4 aout 1914, 
au profit de la Compagnie allemande " Hamburg- Amerika 
Linie" et se livrait, contrairement a la neutralite, a des 
operations ayant pour objet le ravitaillement en com- 
bustible et en vivres, sous le controle d'un agent allemand 
specialement embarque a cet effet, des forces navales 
allemandes aux Antilles et dans l'Atlantique; 

Que ces faits sont de nature a justifler la capture et a 
en trainer la condamnation du navire et de son chargement 
pour assistance hostile, conformement aux principes 
consacres dans les articles 37 et 46 de la Declaration de 
Londres du 26 fevrier 1909; 

Considerant que, sans contester les faits qui out 
motive la capture, le proprietaire du navire oppose une 
exception tiree du lieu ou celle-ci a ete efTectuee et 
conclut de ce chef a ce que ladite capture soit declared 
nulle comme ayant ete faite en violation des eaux fcerri- 
toriales danoises; 

Considerant qu'aux termes de 1'article 2 de la Con- tio ^ a ^ J conven - 
vention XIII de La Haye du 18 octobre 1907: 

Tous actes d'hostilite, y compris la capture ( 4 t 
1'exercice du droit de visite, commis par des vaisseaux 
de guerre belligerants dans les eaux territoriales d'une 



112 INTERNATIONAL, LAW I DECISIONS AND NOTES. 

puissance neutre, constituent une violation de neutralite 
et sont strictement interdits," — que ladite Convention, 
dument ratifiee par les Gouvernements de France, de 
Norvege et de Danemark, a et6 promulguee par decret 
en date du 2 d^cembre 1910, — et que les instructions du 
Ministre de la Marine sur l'application du droit inter- 
national en cas de guerre, en date du 19 decembre 1912, 
comportent les dispositions suivantes: 

"Vous vous conformerez strictement aux interdictions 
imposees aux belligerants par la Convention XIII de La 
Haye, du 18 octobre 1907, concernant les droits et les 
devoirs des puissances neutres en cas de guerre maritime. 
"Pour F application de cette Convention, vous con- 
sidererez les eaux territoriales comme ne s'etendant 
jamais a moins de trois milles des c6tes, des ties ou des 
bancs decouvrant qui en dependent, a compter de la 
laisse de basse mer, et jamais au dela de la portee du 
canon. 

"Vous trouverez dans P annexe 11 le tableau des 
puissances qui . . . ont fixe la limite de leurs eaux ter- 
ritoriales, quant au droit de guerre, a une distance de la 
c6te superieure a trois milles." 

Considerant que si, en matiere de police de la p6che, 
le Danemark s'est departi de ses regies traditionnelles 
et a admis, pour ses eaux territoriales, la limite de 3 
milles, en matiere de prises la limite de 4 milles marins 
est restee en vigueur, ce que constate expressement 
P annexe precitee; 

Mais considerant que le Conde 6tait, depuis le 30 aout, 
en croisiere, a 5 a 6 milles au large de Saint-Thomas, y 
bloquant trois na vires de la "Hamburg Amerika Linie" 
et y attendant le vapeur Heina, qui avait ete signale 
comme se dirigeant vers cette ile avec un chargement 
destine au ravitaillement des croiseurs allemands; 

Que, le 13 septembre, vers onze heures, il apercut le 
Heina et que, ce navire ne stoppant pas apres le coup de 
canon de semonce, il forca de vitesse pour lui couper la 
route ; 

Qu'en ce qui concerne les degres de latitude et de 
longitude dont la determination est necessaire pour situer 
le batiment capteur et le navire capture, les indications 
fournies par le proces- verbal de capture, par P6tat des 
signaux, par la lettre du capitaine du Heina, par le rapport 



INTERNATIONAL, LAW I DECISIONS AND NOTES. 113 

du commandant du Gonde, sont toutes differentes, — 
et qu'il y a lieu de tenir, pour le plus approximativement 
exactes, celles de ce dernier rapport, en date du 22 Janvier 
1915, confirmees par celui du 10 juillet 1915, aux termes 
duquel "le point exact de capture est bien en dehors des 
eaux territoriales, par latitude 18°19' Nord et longitude 
67°30' Ouest"; 

Que ce point se rapporte a la position du vapeur Heina, 
qui se trouvait ainsi a une distance de 4 milles 5/6 de la 
pointe sud de Tile de Savana, ce qui a permis au com- 
mandant du Condi d'ecrire, le 15 septembre 1914, au 
Gouverneur de la Martinique : 

"Bien qu'il (le Eeina) eut tente de gagner Saint- w 5i" UorUl 
Thomas par l'ouest, j'ai pu l'arreter avant qu'il n'entrat 
dans les eaux territoriales ' ' ; 

Que les seuls relevements qui ont servi a determiner la 
position du Gonde: Pointe de Savana N. 72 E. et roche 
du Brigantin S. 54 E. ne permettent certainement pas, 
etant donne 1' approximation du compas de relevement 
et la distance des points releves, d'apprecier la distance 
reelle a un sixieme de mille pres, c'est-a-dire a deux 
longueurs du batiment, et qu'ainsi il n'est nullement 
demontre que ce croiseur ne se trouvait pas a 4 milles 
au large, comme l'estimait le commandant; 

Considerant, par ailleurs, que dans la protestation 
qu'il a remise au moment de la capture, le capitaine du 
Heina n'a presente aucune observation relative au point 
ou cette capture a ete operee; 

En ce qui touche les conclusions subsidiaires de 
M. Mowinckel: 

Considerant qu'il resulte des pieces jointes au dossier 
et notamment de l'affidavit recu le 16 octobre 1914 a 
New-York, que la Societe norvegienne par actions "J. 
Ludwig Mowinckel Dampskibsselskap," proprietaire du 
vapeur Heina et representee par M. J. Ludwig Mowinckel, 
a frete ledit navire, suivant charte-partie du 8 octobre 
1913, a la "New- York and Bermudez Co."de Philadelphie, 
avec faculte de sous-location aux risques et perils des 
affreteurs; — que cette Compagnie a, le 14 juillet 1914, 
sous-fr6te" le vapeur Heina a la "New-York and Puerto 
Rico Steamship Co.", laquelle a elle-meme sous- 
frete le vapeur, le 4 aout 1914, a la Compagnie allemande 
^Hamburg Amerika Linie"; — que M. J. L. Mowinckel 



114 INTERNATIONAL, LAW I DECISIONS AND NOTES. 

n'a pas connu ces sous-affretements successifs, auxquels 
il n'avait d'ailleurs pas le pouvoir de s'opposer, et qu'il 
6tait en droit de compter que, suivant les clauses de la 
charte-partie initiale, le navire ne devait 6tre afFecte 
"qu'au transport de marchandises licites"; 

Mais considerant que la validite de la capture de navire 
etant reconnue, comme il a ete dit ci-dessus, l'Etat ne 
saurait 6tre condamne a restituer a M. Mowinckel la 
somme versee par lui pour reprendre la libre disposition 
dudit navire; — qu'il ne peut 6tre fait droit qu'aux con- 
clusions tendant a ce qu'il soit donne acte de ce que M. 
Mowinckel a ete dans l'ignorance du transport illicite 
qui a motive la saisie, 

Decision. DECIDE : 

La prise du vapeur Beina et de sa cargaison est 
declaree bonne et valablc pour la valeur en 6tre attribuee 
aux ayants droit conform ement aux lois et reglements; 

Tous effets, argent, instruments nautiques et autres 
objets personnels appartenant au capitaine et a 1' equipage 
ont ete a bon droit laisses a la disposition des ayants droit; 

II est donne acte a M. J. Ludwig Mowinckel, represen- 
tant de la Societe "J. Ludwig Mowinckel Dampskibssel- 
skap"; proprietaire du vapeur Heina, de sa demande 
tendant a ce qu'il soit declare, a toutes fins utiles, que 
l'exposant a ete dans l'ignorance du transport illicite qui 
a motive la saisie dudit vapeur et de sa cargaison. 

Le surplus des conclusions de M. J. Ludwig Mowinckel 
est rejete. 

Delibere a Paris, dans la seance du 29 septembre 1915, 
ou siegeaient: MM. Mayniel, president; Rene* Worms, 
Rouchon-Mazerat, Gauthier, Fuzier, Fromageot et de 
Ramey de Sugny, membres du Conseil, en presence de 
M. Chardenet, commissaire du Gouvernement. 

En foi de quoi la presente decision a ete signee par le 
president, le rapporteur et le secretaire-greflier. 

Signe" a la minute: 

E. Mayniel, president; 

Rouchon-Mazerat, rapporteur; 

G. Raab d'Oerry, secretaire-gre-ffier. 

Pour expedition conforme: 
Le Secretaire-greifier, 
G. Raab D'Oerry. 

Vu par nous, Commissaire du Gouvernement, 

P. Chardenet. 



INTERNATIONAL LAW I DECISIONS AND NOTES. 115 

"CHEREF" 

caique lure capture en mer le 12 max 1915 par le croiseur cuirasse 

Jeanne-d' Arc 62 

CONSEIL DES PRISES. 

Decision du 29 novembre 1915. 

Au NOM DU Peuple FRANCAIS, 

Le Conseil des Prises a rendu la decision suivante, entre : 

D'une part, les capitaine, proprietaries, chargeurs et 
destinataires de la cargaison du caique CJieref arr^te en 
mer, par 28° 17' de longitude Est et 36° 36' de latitude 
Nord, a la date du 12 mai 1915, a 8 h. 30, par le croiseur 
cuirasse francais Jeanne-d'Arc-j 

Et, d'autre part, le Ministre de la Marine, agissant pour 
le compte des capteurs et de la Caisse des Invalides de 
la Marine; 

Vu la lettre du Ministre de la Marine, en date du 16 Documents, 
septembre 1915, enregistree au Secretariat du Conseil 
des Prises, sous le n° 60, le 2 octobre suivant, faisant 
envoi du dossier de Tinstruction concernant la saisie de 
ce voilier et de sa cargaison, et demandant que cette 
saisie soit declaree bonne et valable; 

Vu les pieces composant ledit dossier, et notamment: 

1° Le proces-verbal de saisie et l'inventaire dresse le 
12 mai par l'enseigne de vaisseau Robert, envoy e a bord 
du Cher ef par le commandant de la Jeanne-d'Arc; 

2° La patente de sante delivree par l'ofnce sanitaire 
d'Adalia et faisant connaitre que le caique bat pavilion 
ottoman ; 

3° Un passeport a l'interieur; 

4° Un manifeste; 

5° Le proces-verbal dresse le 12 mai par le capitaine 
de vaisseau Grasset, commandant la Jeanne-d'Arc, et 
faisant connaitre les raisons pour lesquelles la prise a 
du 6tre d^truite; 

Vu Favis insere au Journal ofliciel du 4 octobre 1915, 
invitant les interesses a fournir leurs observations dans 
le delai d'un mois, l'aft'aire devant 6tre jugee avant le 3 
decembre 1915; 

Vu les conclusions du commissaire du Gouvernement 
tendant a ce qu'il plaise au Conseil declarer valable la 
capture du caique Cheref et de sa cargaison, attribuer 
aux ayants droit, conformement aux lois et reglements, 
la somme representant la valeur de la cargaison saisie; 

52 Decision inser^e dans le Journal officiel du 9 Janvier 191G. 



116 INTERNATIONAL. LAW : DECISIONS AND NOTES. 

dire qu'il n'y a pas lieu a attribution pour la valeur du 
navire saisi, dont la destruction a ete" op6ree pour des 
motifs de force majeure dument etablis; 

Vu les arretes des 6 germinal an VIII et 2 prairial an 
XI; 

Vu les decrets des 9 mai 1859 et 28 novembre 1861; 

Vu la declaration du Congres de Paris, en date du 
16 avril 1856; 

Vu le decret du 6 novembre 1914 rendant applicable, 
sous certaines reserves, la declaration de la Conference 
navale de Londres du 26 fevrier 1909, ensemble ladite 
declaration ; 

Ouf M. Fuzier, membre du Conseil, en son rapport, et 
M. Chardenet, commissaire du Gouvernement, en ses 
observations a l'appui des conclusions ci-dessus visees; 

Le Conseil, apres en avoir delibere, 
L<£d<£!; ation ° f Considerant, d'une part, qu'il resulte des pieces du 
dossier et qu'il n'est pas conteste que le caique Gheref 
6tait de nationality ottomane; qu'au moment ou il a 
ete* saisi Fetat de guerre existait de fait entre la France 
et la Turquie, depuis le 29 octobre 1914, a 3 heures du 
matin, date du bombardement par les Turcs du port 
d 'Odessa, ou se trouvait un navire francais qui a ete 
canonne* et a bord duquel ont ete tues deux nationaux 
francais; qu'ainsi la cargaison de ce caique doit §tre 
prSsumee ennemie, aux termes de Tarticle 59 de la 
Declaration de Londres, et qu'il n'est apporte" aucune 
preuve ni m6me aucune allegation contraire; que, des 
lors, les denrees composant cette cargaison constituaient 
des marchandises ennemies naviguant sous pavilion enne- 
mi et n'etaient pas de celles qui, en vertu de la declara- 
tion du Congres de Paris, en date du 16 avril 1856, ont 
cesse d'etre saisissables; 

Considerant, d 'autre part, qu'il est etabli, par le 
proces-verbal sus-vise" du commandant du croiseur Jeanne- 
d'Arc, qu'il etait impossible de remorquer ce voilier, 
vieux et mal d^fendu contre la mer, jusqu'au port allie" 
le plus proche qui se trouvait a plus de 120 milles; 
qu'ainsi le batiment capteur, apres avoir pris la cargaison 
a son bord, a pu valablement detruire le caique dont 
Pequipage avait fui a terre a l'approche du croiseur, 

Decision. DECIDE : 

1° Est d6claree bonne et valable la saisie du caique 
turc Cherefet de sa cargaison; 



INTERNATIONAL, LAW I DECISIONS AND NOTES. 117 

2° Le voilier ayant ete detruit pour les motifs ci-dessus 
indiques, il n'y a lieu d'en attribuer la valeur; 

3° La somme representant la valeur de 10 tonnes 
d'orge, de 50 bidons d'huile et de beurre et de 11 sacs 
de farine remis par le capteur au consul de France a 
Alexandrie, sera attribute aux ayants droit, conforme- 
ment aux lois et reglements en vigueur. 

Delibere a Paris, dans la seance du 29 novembre 1915, 
ou siegeaient: MM. Mayniel, president, Rene Worms, 
Fuzier, Fromageot et de Ramey de Sugny, membres 
du Conseil, en presence de M. Chardenet, commissaire 
du Gouvernement. 

En foi de quoi, la presente decision a ete signee par 
le President, le Rapporteur et le Secretaire-greffier. 
Signe a la minute: 

E. Mayniel, president; 
Fuzier, rapporteur; 
G. Raab d'Oerry, secretaire-greffier. 
Pour expedition conforme: 
Le Secretaire-greffier, 
G. Raab d'Oerry. 
Vu par nous, Commissaire du Gouvernement, 

P. Chardenet. 



THE " INDIAN PRINCE." 

February 17, 1916. 
I Entscheidungen des Oberprisengerichts, 87. 

In the prize matter concerning the English steamer 
Indian Prince, Newcastle her home port, the imperial 
superior prize court in Berlin, in virtue of the proceedings 
of its sitting of February 17, 1916, has found as follows: 

"The appeals from the decision of the Prize Court in 
Hamburg, July 3, 1915, are refused." 

REASONS. 



Decision. 



On September 4, 1914, the English steamer Indian th f™e 
Prince, with sundry merchandise on board, and on the 
way from Santos by way of Trinidad, to ports of the 
United States of North America, at 7° south and 31° 
west, was brought to by a German war vessel, and, in 
view of the fact that the taking of the prize to port was im- 
possible, was sunk on September 9, after passengers and 
crew had left the ship. The steamer was the property 
of the Prince Line (Ltd.), Newcastle. 



Statement of 



118 INTERNATIONAL LAW : DECISIONS AXD NOTE& 

Upon the announcement on the part of the imperial 
prize court in Hamburg, 30 parties interested in the cargo 
presented claims for compensation for damages for 37 
shipments that were destroyed. 
for Coi dMrage io to ^he court has confined the matter to the sole question 
neutral mercnan- as ^ whether or not compensation for damages for 
neutral merchandise that was on board an enemy ship 
and sunk along with the latter must be made, and has 
found as follows : 

"Both the ship and the cargo that were sunk were 
subject to seizure. The claims from 1 to 10, from 12 to 
36, and 38 are refused as being unfounded." 

The plaintiffs have appealed from the decision of the 
prize court as regards Nos. 2 to 10, 12 to 26, and 38. 
The appeal had to be refused. 

In the prize matter of the Glitra the competent court 
has decided that when an enemy prize is lawfully de- 
stroyed, neutral merchandise found on board such enemy 
ship and destroyed along with her is not entitled to 
claim compensation for damages. This decision is to be 
followed with regard to the contrary assertions made in 
the present case. 
renSaSoSs ptil * From generally accepted principles, no- such right can 
be deduced, because the act through which the cargo was 
ruined is not unlawful, but is, on the contrary, lawful. Nor 
has a right been established to compensation for damages 
by any positive provision of the prize regulations. This 
applies also to article 110 of the prize regulations together 
with article 8 of the same, to which the plaintiffs have 
referred. For however correct in itself the conclusion 
may be, if the captain is not authorized even to take 
neutral merchandise from an enemy ship in order to make 
use of it, he may by no means do so in order to destroy 
it without using it, this fact is in itself no help in the con- 
sideration of the question with which we are dealing. 
The question we are here considering is as to whether or 
Lawful destruc not, in accordance with international law, the commander 
is obligated to refrain from the lawful destruction of an 
enemy ship merely for the purpose of not destroying at 
the same tune neutral merchandise on board such ship, 
and in particular, as to whether or not he is obligated 
thereto when it is impossible to take the ship to port. 
After having repeatedly considered the question, the 
competent court must hold to a denial of such obligation. 
In this connection one need only make reference to the pre- 



rSTERKATTO^AL LAW I DECISIONS AND NOTES. 119 

vious statement of justification. In particular, it is not 
correct that the said decision was based upon the ground 
that the shippers, by lading their merchandise on an 
enemy ship, had assumed the risk of seizure and destruc- 
tion and, therefore, were not entitled to compensation. 53 

On the contrary, in that decision, the idea that the 
neutral was free to expose or not to expose his merchan- 
dise on board the enem} T ship and to the dangers connected 
therewith was considered only in a general way; and that 
for the purpose of showing that the refusal of an indem- 
nification was not only obligatory from a purely legal 
point of view, but that it could not be regarded as unfair. 

The essential reason for that decision, as well as for the Carg0 - 
decision in the present case is found in the actual de- 
pendence of the cargo on the fate of the ship by reason 
of which the cargo must bear the loss arising from the 
exercise of a prize measure which is justifiably taken with 
regard to the ship. It can not be seen why this generally 
accepted principle, which is also unreservedly accepted 
in the memoir to article 64 of the London declaration, T Declaration of 

London. 

should only apply in case of capture and not likewise in 
case of the justified destruction of a ship. 

The only question, therefore, that arises is as to whether p^uSSa y aad W 85 
or not the commercial treaty between Prussia and theSSs!* 1 stat98 ' 
United States of North America offers a basis for the 
claim of the plaintiffs. This also must be denied. 

The provisions of the said treaty with Prussia must, in 
view of the practice which has been confirmed mutually 
not only during the present war, but likewise in previous 
instances, be considered as governing the relations exist- 
ing between the German Empire and the United States : 
materially, however, nothing arises from the treaty in 
favor of the plaintiffs. 

According to Article XII of the treaty of 1828 we are 
only to consider Articles XII and XIII of the earlier 
treaties of 1785 and 1799, and Article XII in the original 
text of the treaty of 1785. 

In this Article XII the legal principle "free ship, free "Free ship, free 
goods" is agreed upon. Whereas in treaties which the 
United States concluded about the same time with other 
States there is found beside this provision the principle 
reading " enemy ship, enemy goods," whereby an ex- 

" The plaintiffs have asserted that this viewpoint does not apply here, because the 
loading had taken place even before the outbreak of the war. 



120 INTERNATIONAL LAW: DECISIONS AND NOTES. 

ception is made only for merchandise which was unloaded 
before the outbreak of the war or within a definite pe- 
riod after the outbreak, the treaty with Prussia is silent 
as regards this matter, and there might be doubt as 
to how we are to understand that fact. Prussia may, in- 
deed, have taken the standpoint that neutral merchan- 
dise, even on board an enemy ship, should not be sub- 
ject to seizure. This may, indeed, be presumed if for 
no other reason than that not long thereafter the same 
fundamental principle was recognized in the Prussian 
statute book. Furthermore, in the course of the negotia- 
tions that led to the treaty of 1785 Prussia had expressed 
the desire -whereto the plaintiffs appropriate^ 7 refer — 
that instead of the expression proposed in the Ameri- 
can outline, " enemy ship, enemy goods" there should 
be put the contrary idea, " enemy ship, free goods." But 
the United States did not accept the proposition, and 
therefore nothing has been stipulated in regard to this 
point. Thereby the legal condition as provided by the 
treaty corresponded to that which had been sought for 
by the "armed neutrality" of 1780. In the latter's text 
only the rule "free ship, free goods" found expression, 
while nothing was said therein with regard to neutral 
merchandise on board an enemy ship. From many 
sources, however, this has been interpreted to the effect 
that no resistance would be attempted against the seiz- 
ure of neutral merchandise on board an enemy ship. "By 
long practice it had become the custom to regard the con- 
fiscation of neutral merchandise on board enemy ships as 
a concession made to the belligerent in order that the 
latter might recognize the inviolability of enemy mer- 
chandise on board neutral ships." 

[Cauchy, Le Droit Maritime International, Vol. II, p. 262.) 

Now, it is this standpoint which the official authorities 
of the United States of North America took when in- 
Treaty of 1785. terpreting the treaty of 1785 at the time when it was still 
in force. No less a man than the Secretary of State, 
Jefferson, who had had a personal part in the conclusion 
of the treaty of 1785, expressed himself to that end 
when in 1793 France, who was then at war with England, 
made complaint to the United States to the effect that 
England was seizing French merchandise carried in Ameri- 
can ships, and that the United States did not make objec- 
tion. In the note of Jefferson, dated July 24, 1793, by 
which the complaint was refused as unfounded, because ac- 



INTERNATIONAL LAW : DECISIONS AND NOTES. 121 

cording to the general law of nations (Consolato del mar) 
enemy merchandise on board a neutral ship was subject 
to seizure, which could be modified only in case "free 
ship, free goods" were agreed upon by treaty, we find 
these words: 

We have adopted this modification in our treaties with France, the Jefferson's 
Netherlands and Prussia, and, therefore, as to them, our vessels carry 
the goods of their enemies, and we lose our goods, when in the vessels of 
their enemies. 

Although in the treaty with Prussia only the principle 
" free ship, free goods" was established, yet the Secre- 
tary of State, Jefferson, assumes that in accordance 
therewith, the principle "enemy ship, enemy goods" applied 
automatically with regard to Prussia. 

The claimants, therefore, do not appeal to Article XII 
either, but to Article XIII of the treaties of 1785 and 
1799. They do not deny that even from this article 
nothing can be gained by them in favor of their stand- 
point in case the French text of the treaty is considered. 
But they want to hold to the English text which evi- 
dences a change from which they believe they can draw 
the conclusion that, in all cases where merchandise of 
nationals of the United States of America is concerned, 
even if the cargo is on board an enemy ship, indemnifica- 
tion must be paid. 

We need not consider which of the two texts is the 
authoritative one, nor need we consider how, in case 
both are authoritative, a contradiction between the two 
might be cleared up. For, not even the English text 
yields any results favorable to the plaintiffs. Their view 
is, in the first place, controverted because it is in direct 
contradiction with the interpretation which the Govern- 
ment of the United States, as has already been shown, 
gave to it in 1793. 

Furthermore, even from a purely linguistic point of Texts of treaty, 
view, the interpretation of the English text as given by 
the plaintiffs, is not admissible. While the French text 
deals with merchandise that is laden: 

"A bord des vaisseaux des sujets ou citoyens de Tune 
des Parties/' 

we read, on the contrary, in the English text,|not as it 
should read in literal agreement: Carried in the vessels of 
the subjects or citizens of either party, but " Carried 
in the vessels or by the subjects or citizens of either 
party." 



122 INTERNATIONAL LAW: DECISIONS AND NOTES. 

Thereby, according to the plaintiffs, there comes under 
the protection of Article XIII merchandise that is ship- 
ped in American or Prussian ships, as well as merchan- 
dise that is shipped by American or Prussian nationals — 
in no matter what kind of ships, and, hence, also in 
enemy ships, — which, so it is asserted, is equivalent to 
merchandise that belongs to such nationals. 

But the latter idea finds no expression in the treaty. 
Transportation. "Carried by" does not refer to property relationship, 
but to the personality of him who undertakes the trans- 
portation. That, however, is the ship-owner, and not the 
consignor or consignee. The entire departure of the 
English text from the French text, therefore, amounts 
to an extension of the English text, to the effect that 
besides the ships of both nationals there are expressly 
named, and that in the first place, the ships of the 
parties to the treaty themselves, that is to say, the public 
ships — "the vessels of either party." For the words "of 
either party" must also be applied to "in the vessels," if 
any meaning at all is to be given to the latter expression . 

It is significant, that in the French text as found in 
Martens, Recueil des Traites, Supplement, II, page 226, 
which reprints the edition of the treaty prepared by the 
imperial office of the interior, and which, unmistakably, 
presents an independent translation from the English 
made soon after the conclusion of the treaty of 1799, the 
translator has reproduced the passage in exactly this 
sense. The expression "elles memes" in the form "ou 
d'elles memes" can, for grammatical reasons, refer only 
to the "parties contractantes" in whose own ships the 
merchandise is being conveyed. 

But, from material grounds as well, another interpre- 
tation is not possible, 
-contraband. Article XIII deals with contraband. To meet the con- 
troversies that are usually connected with the question 
as to whether or not merchandise is contraband, agree- 
ment is made that even contraband shall not be subject 
to seizure; in case of need it may indeed be requisitioned 
upon payment of its value; if the military situation so 
demands, it may even be seized temporarily, but even 
so only by compensation made for the damage thereby 
accruing to the shipper. These provisions of Article 
XIII are most closely connected with that which is 



INTERNATIONAL LAW : DECISIONS AND NOTES. 123 

agreed upon in Article XII. As, in a general way, con- 
traband is always excepted from the principle "free ship, 
free goods" so in this case, after that principle is estab- 
lished in Article XII for enemy merchandise in Prussian 
or American ships, the exceptional case is taken up in 
Article XIII when the merchandise on board those ships 
is of contraband nature or suspected of being contraband. 
That this is indeed meant is indicated by the provision 
regarding the treatment of the particular ship, by which 
the captain who undertakes to convey contraband to the 
enemy shall be free to surrender such contraband in 
order that he may thereafter continue his journey un- 
molested. Unmistakably in this connection only the 
ships of the contracting parties were under consideration. 
It seems absolutely out of the question that the matter 
agreed upon should also have been intended to cover the 
case of an enemy ship conveying weapons, ammunition, 
etc., to her own military forces. It can not have been 
the intention that the belligerent party which succeeds in 
capturing an enemy ship carrying weapons and ammu- 
nition, should be obligated to make compensation there- 
for in case it was a national of the other contracting 
State who caused the transportation of the weapons to the 
enemy, or that the enemy ship in case it has surrendered 
the contraband, might continue her trip unmolested. 

Accordingly, if Article XIII of the treaty of 1799 does Treaty of i7w. 
not refer to contraband on board enemy ships, it goes 
without saying that nothing can be deduced from it as 
regards the treatment of innocent merchandise on board 
such ships. The principle " enemy ship, free goods" is, now 
of course, also valid with regard to the United States, but 
its validity does not rest upon any special conventional 
provision, but only upon general international law as it 
has been recognized in the declaration of Paris of 1856 
and as applicable, according to the German prize regu- 
lations, even to countries which, like the United States, 
have not adhered to that declaration. With regard, 
therefore, to the question whether in circumstances 
like those now under discussion, indemnification is to be 
made to the owners of neutral merchandise, only the 
same principles that apply to the nationals of other 
neutral countries can apply to the nationals of the United 
States. These principles have been recorded in the de- 
cision regarding the Glitra. 
59650—24 9 



124 INTERNATIONAL LAW I DECISIONS AND NOTES. 

THE "FEDERICO." 

vapeur espagnol cnpturS en mer le 10 octobre 1914 pnr le torpillcur .%0. M 

CONSEIL DES PRISES. 

Decision des 15 et 16 mars 1916. 

Au nom du Peuple francajs, 

Le Conseil des Prises a rendu la decision suivante, 
entre : 

D'une part, le proprietaire du vapeur espagnol Federico, 
de Barcelone, capture en mer le 10 octobre 1914 par le 
torpilleur 360; 
Documents. Et, d'autre part, le Ministre de la Marine, representant 
les capteurs et la Caisse des Invalides de la marine; 

Vu la lettre du Ministre de la Marine, enregistree au 
secretariat du Conseil des Prises le 18 Janvier 1915, 
demandant qu'il soit statue sur la validite de la prise 
effectuee le 10 octobre 1914 par le torpilleur 360; 

Vu le proces-verbal de capture du vapeur Federico, 
dresse le 11 octobre 1914, en rade de Toulon; 

Vu le proces-verbal de visite, dresse le 15 octobre 1914; 

Vu le proces-verbal de capture, comme prisonniers de 
guerre, de passagers allemands et austro-hongrois, 
mobilises et transported par le vapeur Federico, ledit 
proces-verbal dresse le 19 octobre 1914; 

Vu le proces-verbal d'interrogatoire de Fequipage, 
dresse" le 11 octobre 1914 par le commissaire des tor- 
pilleurs de Toulon et le proces-verbal d'interrogatoire 
du capitaine du vapeur Federico, dresse le 20 octobre 

1914 par le delegue du commissaire aux Prises de Toulon; 
Vu Favis insere au Journal officiel le 21 Janvier 1915, 

ensemble Favis donne au proprietaire du vapeur Federico; 
Vu le memoire presente par M. Henry Mornard, avocat 
au Conseil d'Etat, au nom du sieur Ricardo Ramos, 
proprietaire du vapeur Federico, ledit memoire enre- 
gistre au secretariat du Conseil des Prises le 20 fevrier 

1915 et tendant a la relaxe de ce vapeur, par les motifs 
que ses passagers n'etaient pas incorpores dans les 
armees ennemies, et qu'il ne voyageait pas specialement 
en vue de leur transport; ensemble la lettre adress^e par 
le sieur Ramos au consul general de France a Barcelone 
et transmise par celui-ci le 4 novembre 1914 au Ministere 
des Affaires etrangeres; 

6 * Decision iiiseree dans le Journal officiel du 10 inai 1915. (Voir decret rendu en 
Conseil d' Etat p., 367.) 



INTERNATIONAL LAW : DECISIONS AND NOTES. 125 

Vu le memorandum adresse au Ministre des Affaires 
etrangeres par l'ambassadeur d'Espagne a Paris, en- 
registre comme ci-dessus le 26 fevrier 1915, et exposant 
notamment que c'est a tort que le vapeur Federico a ete 
visits a Toulon au lieu de l'etre en pleine mer; 

Vu les conclusions du commissaire du Gouvernement 
tendant a ce qu'il plaise au Conseil declarer bonne et 
valable la capture du vapeur Federico, pour la valeur 
nette en §tre adjugee aux ayants droit, conform em en t 
aux lois et reglements; 

Ensemble les autres pieces jointes au dossier; 

Vu l'arr§te du 2 prairial an XI; 

Vu la declaration du Congres de Paris du 16 avril 1856; 

Vu le decret du 25 aout 1914, ensemble la declaration 
de la conference navale de Londres du 26 fevrier 1909, 
que ledit decret rend applicable durant la guerre, sous 
reserve des additions et modifications qu'il determine; 

Vu les decrets des 9 mai 1859 et 28 novembre 1861; 

Oui M. Rene Worms, membre du Conseil, en son 
rapport, et M. Chard enet, commissaire du Gouvernement, 
en ses observations a l'appui de ses conclusions ci-dessus 
visees; 

Le Conseil, apres en avoir delibere, 

Sur la regularity de la capture : 

Considerant qu'il resulte de ^instruction que le 10 statement of the 

^ A case. 

octobre 1914, lors de la capture du vapeur espagnol 
Federico par le torpilleur 360, l'etat de la mer ne per- 
mettait pas a l'etat-major du torpilleur de proceder au 
large a la visite du Federico; que, dans ces circonstances, 
la visite a pu regulierement n'etre effectuee qu'au port de 
Toulon, ou le navire avait ete conduit; 

Sur la validite de la capture; 

Considerant que la Conference navale, tenue a Londres T Declaration of 

x 7 London. 

en 1909, a fait, le 26 fevrier, une declaration qui n'a 
pas ete* ratifiee par la France; mais que le decret ci-dessus 
vise du 25 aout 1914 a rendu ladite declaration applicable 
durant la guerre, sous reserve des additions et modifica- 
tions qu'il a en meme temps edictees; qu'ainsi les dis- 
positions contenues tant dans la declaration que dans le 
decret constituent, dans leur ensemble, un acte unilateral 
du Gouvernement francais, dont il appartient au Conseil 
des Prises, charge d'en faire application, de determiner 
le sens et la portee; 

Considerant que, aux termes de Tarticle 45 de la Decla- 
ration de Londres, un navire neutre est confisqu£ lorsqu'il 



126 



INTERNATIONAL LAW '. DECISIONS AND NOTES. 



Decision. 



voyage specialement en vue du transport de passagers 
individuals incorpores dans la force armee ennemie; 

Considerant qu'il resulte de l'instruction que le vapeur 
Federico n'est pas un paquebot faisant regulierement le 
transport des voyageurs; que, lorsqu'il a ete capture 
en mer, il voyageait specialement en vue du transport, 
de Barcelone a GeHes, de nombreux passagers allemands 
ftt austro-hongrois, dont la grande majorite appartenaient 
par leur age aux classes mobilisees par leurs gouverne- 
ments respectifs et voyageaient pour repondre a cet 
appel; que, dans ces circonstances, ces passagers devaient 
e*tre regardes comme incorpores au sens de Particle 45 
precite, et qu'ainsi le navire etait, aux termes dudit 
article, passible de confiscation. 

Decide : 

La prise du vapeur espagnol Federico, y compris les 
agres, apparaux et accessoires, est declaree bonne et 
valable pour la valeur nette en §tre adjugee aux ayants 
droit, conformement aux lois et reglements en vigueur. 

Delibere a Paris, les 15 et 16 mars 1915, ou siegeaient: 
MM. Mayniel, president; Ren6 Worms, Rouchon-Mazerat, 
Gauthier, Fuzier, Lefevre et Fromageot, membres du 
Conseil, en presence de M. Chardenet, commissaire du 
Gouvernement. 

En foi de quoi la presente decision a ete signee par 
le President, le Rapporteur et le Secretaire-greffier. 

Signe a la minute: 

E. Mayniel, president; 

Rene Worms, rapporteur; 

G. Raab d'Oerry, secretaire-greffier. 

Pour expedition conforme: 
Le Secretaire-greffier, 
G. Raab d'Oerry. 

Vu par nous, Commissaire du Gouvernement. 

P. Chardenet. 



case 



THE "ZAMORA." 

[Privy Council.] 

ON APPEAL FROM THE PRIZE COURT, ENGLAND. 

April 7, 1916. 

[1916] 2 A. C 77. 

statement of Lord Parker of Waddington, in delivering the con- 
sidered judgment of the board, said that on April 8, 



INTERNATIONAL LAW! DECISIONS AND NOTES. 127 

1915, the Zamora was stopped by one of his Majesty's 
cruisers and was taken to the Orkney Islands and thence 
to Barrow-in-Furness. She was seized as prize in the 
latter port on April 19, 1915, and in due course was 
placed in the custody of the marshal of the prize court. 
It was admitted on the one hand that the copper was 
contraband of war, and on the other hand that the steam- 
ship was ostensibly bound for a neutral port. On May 
14, 1915, a writ was issued by His Majesty's procurator 
general claiming confiscation of both vessel and cargo, 
and on June 14, 1915, the president, at the instance of 
the procurator general, made an order under Order 
XXIX, rule 1, of the prize court rules, giving leave to 
the war department to requisition the copper, subject 
to an undertaking in accordance with the provisions of 
Order XXIX, rule 5. The present appeal was from the 
president's order. 

It would be convenient first to consider the terms of 
Order XXIX. Though the order in terms applied to 
ships only, it was by virtue of Order I, rule 2, of the prize 
court rules equally applicable to goods. The first rule 
of Order XXIX provided that where it was made to 
appear to the judge on the application of the proper 
officer of the Crown that it was desired to requisition a 
ship in respect of which no final decree of condemnation 
had been made, he should order that the ship be appraised 
and on an undertaking's being given in accordance with 
rule 5 of the order the ship should be released and de- 
livered to the Crown. The third rule of the order provided 
that where in any case of requisition under the order it 
was made to appear to the judge on behalf of the Crown 
that the ship was required for the service of his Majesty 
forthwith, the judge might order the vessel to be forth- 
with released and delivered to the Crown without 
appraisement. In such a case the amount payable by 
the Crown was to be fixed by the judge under rule 4 of 
the order. 

The fifth rule of the order provided that in every case 
of requisition under the order an undertaking in writing 
should be filed by the proper officer of the Crown for 
payment into court on behalf of the Crown of the appraised 
value of the ship or of the amount fixed under rule 4 of 
the order as the case might be, at such time or times as 
the court should declare that the same or any part thereof 
was required for the purpose of payment out of court. 



128 INTERNATIONAL, LAW: DECISIONS AND NOTES. 

The first observation which their lordships desired to 
make on this order was that the provisions of rule 1 were 
prima facie imperative. The judge was to act in a certain 
way whenever it was made to appear to him that it 
was desired to requisition the vessel or goods on his 
Majesty's behalf. If that were the true construction of 
the rule, and the judge was, as a matter of law, bound 
thereby, there was nothing more to be said, and the 
appeal must fail. If, however, it appeared that the rule 
so construed was not, as a matter of law, binding on the 
judge, it would have, if possible, to be construed in some 
other way. Their lordships proposed, therefore, to 
consider in the first place whether the rule, if construed as 
an imperative direction to the judge, was to any and 
what extent binding. 

The prize court rules derived their force from orders 
of his Majesty in council of April 29, 1915. These orders 
were expressed to be made under the powers vested in 
his Majesty by virtue of the prize court act, 1894, or 
otherwise. The act of 1894 conferred on the King in 
council power to make rules for the procedure and practice 
of the prize courts. So far, therefore, as the prize court 
rules related to procedure and practice, they had statutory 
force and were undoubtedly binding. But Order XXIX, 
rule 1, construed as an imperative direction to the judge, 
was not merely a rule of procedure or practice. It 
could only be a rule of procedure or practice if it were 
construed as prescribing the course to be followed if the 
judge was satisfied that according to the law administered 
in the prize court the Crown had, independently of the 
rule, a right to requisition the vessel or goods, or if the 
judge was minded in the exercise of some discretionary 
power inherent in the prize court to sell the vessel or 
goods to the Crown. 

If, therefore, Order XXIX, rule 1, construed as an 
imperative direction, were binding, it must be by virtue 
of some power vested in the King in council, otherwise 
than by virtue of the act of 1894. It was contended by 
the attorney general that the King in council had such 
a power by virtue of the royal prerogative, and their 
lordships would proceed to consider this contention. 
Power of King The idea that the King in council, or indeed any branch 

in council. ° 7 J 

of the Executive, had power to prescribe or alter the law 
to be administered by courts of law in this country was 
not in harmony with the principles of our constitution. 



INTERNATIONAL LAW I DECISIONS AND NOTES. 129 

It was true that, under a number of modern statutes, 
various branches of the Executive had power to make 
rules having the force of statutes, but all such rules de- 
rived their validity from the statute which created the 
power, and not from the executive body by which they 
were made. No one could contend that the prerogative 
involved any power to prescribe or alter the law ad- 
ministered in courts of common law or equity. It was, 
however, suggested that the manner in which prize 
courts in this country were appointed and the nature of 
their jurisdiction differentiated them in this respect 
from other courts. 

Before the naval prize act, 1864, jurisdiction in mat-fl**** J arisdto - 
ters of prize was exercised by the High Court of Admiralty 
by virtue of a commission under the great seal at the 
beginning of each war. The commission, no doubt, 
owed its validity to the prerogative, but it could not on 
that account be properly inferred that the prerogative 
extended to prescribing or altering the law to be ad- 
ministered from time to time under the jurisdiction there- 
by conferred. The courts of common law and equity in 
like manner originated in an exercise of the prerogative. 
The form of commission conferring jurisdiction in prize 
on the court of admiralty was always substantially the 
same. Their lordships would take that quoted by Lord 
Mansfield in Lindo v. Rodney (2 Doug. 613) as an ex- 
ample. It required and authorized the court of admiralty 
" to proceed upon all and all manner of captures, seizures, 
prizes, and reprisals of all ships or goods that are or shall 
be taken, and to hear and determine according to the 
course of admiralty and the law of nations." 

If those words were considered there appeared to be 
two points requiring notice, and each of them, so far 
from suggesting any reason why the prerogative should 
extend to prescribing or altering the law to be adminis- 
tered by a court of prize suggested strong grounds why 
it should not. 

In the first place, all those matters on which the court 
was authorized to proceed were, or arose out of, acts 
done by the sovereign power in right of war. It fol- 
lowed that the King must, directly or indirectly, be a 
party to all proceedings in a court of prize. In such a 
court his position was in fact the same as in the ordinary 
courts of the realm on a petition of right which had been 
duly fiated. Rights based on sovereignty were waived 



130 INTERNATIONAL LAW! DECISIONS AND NOTES. 

and the Crown accepted for most purposes the position 
of an ordinary litigant. A prize court must, of course, 
deal judicially with all questions which came before it 
for determination, and it would be impossible for it to 
act judicial] 3^ if it were bound to take its orders from one 
of the parties to the proceedings, 
international itw d ^ n tne second place, the law which the prize court was 
to administer was not the national, or, as it was sometimes 
called, the municipal law, but the law of nations — in 
other words, international law. It was worth while 
dwelling for a moment on that distinction. Of course, 
the prize court was a municipal court and its decrees 
and orders owed their validity to municipal law. The 
law which it enforced might, therefore, in one sense, be 
considered a branch of municipal law. Nevertheless, the 
distinction between municipal and international law was 
well defined. A court which administered municipal 
law was bound by and gave effect to the law as laid down 
by the sovereign State which called it into being. It 
need inquire only what that law was, but a court which 
administered international law must ascertain and give 
effect to a law which was not laid down by any par- 
ticular State, but originated in the practice and usage 
long observed by civilized nations in their relations with 
each other or in express international agreement. 

It was obvious that, if and so far as a court of prize in 
this country was bound by and gave effect to orders of the 
King in council purporting to prescribe or alter the in- 
ternational law, it was administering not international 
but municipal law; for an exercise of the prerogative 
could not impose legal obligation on anyone outside the 
King's Dominions who was not the King's subject. If 
an order in council were binding on the prize court such 
Court might be compelled to act contrary to the express 
terms of the commission from which it derived its juris- 
diction. 

There was yet another consideration which pointed to 
the same conclusion. The acts of a belligerent power in 
right of war were not justiciable in its own courts unless 
such power, as a matter of grace, submitted to their 
jurisdiction. Still less were such acts justiciable in the 
courts of any other power. As was said by Mr. Justice 
Story in the case of the Invincible (2 Gall. 43), "acts 
done under the authority of one sovereign can never be 
subject to the revision of the tribunals of another sovereign, 



INTERNATIONAL LAW : DECISIONS AND NOTES. 131 

and the parties to such acts are not responsible therefor 
in their individual capacity." It followed that, but for 
the existence of courts of prize, no one aggrieved by the 
acts of a belligerent power in times of war could obtain 
redress otherwise than through diplomatic channels and dr ^ )lomatIc re " 
at a risk of disturbing international amity. An appro- 
priate remedy was, however, provided by the fact 
that, according to international law, every belligerent 
power must appoint and submit to the jurisdiction of a 
prize court, to which any person aggrieved had access, 
and which administered international as opposed to 
municipal law — a law which was .theoretically the same, 
whether the court which administered it was constituted 
under the municipal law of the belligerent power or of the 
sovereign of the person aggrieved, and was equally bind- 
ing on both parties to the litigation. It had long been 
well settled by diplomatic usage that, in view of the 
remedy thus afforded, a neutral aggrieved by any act of 
a belligerent power cognizable in a court of prize ought, 
before resorting to diplomatic intervention, to exhaust 
his remedies in the prize courts of the belligerent power. 

A case for such intervention arose only if the decisions 
of those courts were such as to amount to a gross mis- 
carriage of justice. It was obvious, however, that the 
reason for that rule of diplomacy would entirely vanish 
if a court of prize, while nominally administering a law 
of international obligation, were in reality acting under 
the direction of the Executive of the belligerent power. 

It could not, of course, be disputed that a prize court, 
like any other court, was bound by the legislative enact- 
ments of its own sovereign State. A British prize court 
would certainly be bound by acts of the imperial legis- 
lature. But it was none the less true if the imperial 
legislature passed an act the provisions of which were National law. 
inconsistent with the law of nations, the prize court in 
giving effect to such provisions would no longer be 
administering international law. It would in the field 
covered by such provisions be deprived of its proper 
function as a prize court. Even if the provisions of the 
act were merely declaratory of the international law, the 
authority of the court as an interpreter of the law of 
nations would be thereby materially weakened, for no one 
could say whether its decisions were based on a due con- 
sideration of international obligations or on the binding 
nature of the act itself. The fact, however, that the 



132 INTERNATIONAL LAW: DECISIONS AND NOTES. 

prize courts in this country would be bound by acts of 
the imperial legislature afforded no ground for arguing 
that they were bound by the executive orders of the 
King in council. 

Continuing, Lord Parker said : 

In connection with the foregoing considerations, their 
Lordships attach considerable importance to the report 
case of 1763. dated January 18, 1753, of the committee appointed by 
his Britannic Majesty to reply to the complaints of 
Frederick II of Prussia as to certain captures of Prussian 
vessels made by British ships during the war with France 
and Spain, which broke out in 1744. By way of reprisals 
for these captures, the Prussian King had suspended the 
payment of interest on the Silesian loan. The report, 
which derives additional authority from the fact that it 
was signed by Mr. William Murray, the solicitor general, 
afterwards Lord Mansfield, contains a valuable state- 
ment as to the law administered by courts of prize. This 
is stated to be the law of nations, modified in some cases 
by particular treaties. "If," says the report, "a subject 
of the King of Prussia is injured by or has a demand 
upon any person here, he ought to apply to your Majesty's 
courts of justice, which are equally open and indifferent 
to foreigner or native; so, vice versa, if a subject here is 
wronged by a person living in the Dominions of his 
Prussian Majesty, he ought to apply for redress in the 
King of Prussia's courts of justice. If the matter of 
complaint be a capture at sea during war, and the ques- 
tion relative to prize, he ought to apply to the judicatures 
established to try these questions. The law of nations, 
founded upon justice, equity, conscience, and the reason 
of the thing, and confirmed by long usage, does not allow 
of reprisals, except in case of violent injuries directed or 
supported by the State, and justice absolutely denied in 
re minime dubia by all the tribunals and afterwards by 
the prince. When the judges are left free and give 
sentence according to their conscience, though it should 
be erroneous, that would be no ground for reprisals. 
Upon doubtful questions different men think and judge 
differently, and all a friend can desire is that justice 
should be impartially administered to him as it is to the 
subjects of that prince in whose courts the matter is 
tried." The report further points out that in England 
"the Crown never interferes with the course of justice. 
No order or intimation is given to any judge." It also 



INTERNATIONAL LAW I DECISIONS AND NOTES. 133 

contains the following statement: "All captures at sea 
as prize in time of war must be judged of in the court of 
admiralty according to the law of nations and particular 
treaties, if there are any. There never existed a case 
where a court, judging according to the laws of England 
only, took cognizance of prize. * * * It never was 
imagined that the property of a foreign subject taken 
as prize on the high seas could be affected by laws 
peculiar to England." This report is, in their lordships' 
opinion, conclusive that in 1753 any notion of a prize 
court being bound by the executive orders of the Crown 
or having to administer municipal as opposed to inter- 
national law, was contrary to the best legal opinion of 
the day. 

The attorney general was unable to cite any case in 
which an order of the King in council had as to matters 
of law been held to be binding on a court of prize. He 
relied chiefly on the judgment of Lord Stowell in the case 
of the Fox (Edw. 311). The actual decision in this case 
was to the effect that there was nothing inconsistent with 
the law of nations in certain orders in council made by 
way of reprisals for the Berlin and Milan decrees, though 
if there had been no case for reprisals, the orders would 
not have been justified by international law. The deci- 
sion proceeded upon the principle that where there is 
just cause for retaliation neutrals may by the law of Retention, 
nations be required to submit to inconvenience from the 
acts of a belligerent power greater in degree than would 
be justified had no just cause for retaliation arisen, a 
principle which had been already laid down in the Lucy 
(Edw. 122). 

The judgment of Lord Stowell contains, however, a 
remarkable passage quoted in full in the court below, 
which refers to the King in council possessing ''legislative 
rights" over a court of prize analogous to those possessed on^zewSS** 11 
by Parliament over the courts of common law. At most 
this amounts to a dictum, and in their lordships' opinion, 
with all due respect to so great an authority, the dictum 
is erroneous. It is, in fact, quite irreconcilable with 
the principles enunciated by Lord Stowell himself. For 
example, in the Maria, a Swedish ship (1 C. Rob. 340), 
his judgment contains the following passage: "The seat 
of judicial authority is indeed locally here in the belliger- 
ent country, according to the known law and practice of 
nations, but the law itself has no locality. It is the duty 



134 INTERNATIONAL, LAW I DECISIONS AND NOTES. 

of the person who sits here to determine this question 
exactly as he would determine the same question if 
sitting at Stockholm, to assert no pretensions on the part 
of Great Britain which he would not allow to Sweden in the 
same circumstances, and to impose no duties on Sweden 
as a neutral country which he would not admit to belong 
to Great Britain in the same character. " It is impossible 
to reconcile this passage with the proposition that the 
prize court is to take its law from orders in council. 
Moreover, if such a proposition were correct the court 
might at any time be deprived of the right which is well 
recognized of determining according to law whether a 
blockade is rendered invalid either because it is ineffective, 
or because it is partial in its operation (see the FrancisJca, 
10 Moore, P. C. 37). Moreover, in the Lucy, above 
referred to, Lord Stowell had, in effect, refused to give 
effect to the order in council on which the captors relied. 

Lord Stowell's dictum gave rise to considerable con- 
temporaneous criticism, and is definitely rejected by Sir 
R. Phillimore ("Int. Law," Vol. III., sec. 436). It is 
said to have been approved by Mr. Justice Story in the 
case of Maisonnaire v. Keating (2 Gall. 325), but it will 
be found that Mr. Justice Story's remarks, on which 
some reliance seems to have been placed by the president 
in this case, are directed not to the liability of captors in 
their own courts of prize, but to their liability in the 
courts of other nations. He is in effect repeating the 
opinion he expressed in the case of the Invincible, to which 
their lordships have already referred. An act, though 
illegal by international law, will not on that account be 
justiciable in the tribunals of another power — at any 
rate if expressly authorized by order of the sovereign on 
whose behalf it is done. 

Their lordships have come to the conclusion, therefore, 
that at any rate prior to the naval prize act, 1864, there was 
no power in the Crown, by order in council, to prescribe or 
alter the law which prize courts have to administer. It 
was suggested that the naval prize act, 1864, confers such 
piiU «mrt. a n d a P ower - Under that act the court of admiralty became a 
permanent court of prize, independent of any commission 
issued under the great seal. The act, however, by section 
55, while saving the King's prerogative, on the one hand, 
saves, on the other hand, the jurisdiction of the court to 
decide judicially, and in accordance with international 
law. Subject, therefore, to any express provisions con- 



INTERNATIONAL, LAW! DECISIONS AND NOTES. 135 

tained in other sections, it leaves matters exactly as they 
stood before it was passed. The only express provisions 
which confer powers on the King in council are: (1) 
Those contained in section 13 (now repealed and super- 
seded by sec. 3 of the prize court act, 1894), conferring a 
power of making rules as to the practice and procedure of 
prize courts; and (2) those contained in section 53, con- 
ferring power to make such orders as may be necessary 
for the better execution of the act. 

Their lordships are of opinion that the latter power 
does not extend to prescribing or altering the law to be 
administered by the court, but merely to giving such 
executive directions as may from time to time be neces- 
sary. In all respects material to the present question, 
the law therefore remains the same as it was before the 
act, nor has it been affected by the substitution under 
the supreme court of judicature acts, 1873 and 1891, of 
the high court of justice for the court of admiralty as the 
permanent court of prize in this country. 

There are two further points requiring notice in this 
part of the case. The first arises on the argument ad- 
dressed to the board by the solicitor general. It may be, 
he said, that the court would not be bound by an order 
in council which is manifestly contrary to the established 
rules of international law, but there are regions in which na ^J 11 ° f w inter * 
such law is imperfectly ascertained and defined; and, 
when this is so, it would not be unreasonable to hold that 
the court should subordinate its own opinion to the 
directions of the executive. This argument is open to 
the same objection as the argument of the attorney 
general. If the court is to decide judicially in accordance 
with what it conceives to be the law of nations, it can not, 
even in doubtful cases, take its directions from the 
Crown, which is a party to the proceedings. It must 
itself determine what the law is according to the best of 
its ability, and its view, with whatever hesitation it be 
arrived at, must prevail over any executive order. Only • 
in this way can it fulfill its function as a prize court and 
justify the confidence which other nations have hitherto 
placed in its decisions. 

The second point requiring notice is this: It does not 
follow that, because orders in council can not prescribe 
or alter the law to be administered by the prize court, 
such court will ignore them entirely. On the contrary, 
it will act on them in every case in which they amount to 
a mitigation of the Crown rights in favor of the eDemy or 



136 INTERNATIONAL LAW I DECISIONS AND NOTES. 

neutral, as the case may be. As explained in the case of 
the Odessa (32 The Times L. R. 103; [1916] A. C. 145), the 
Crown's prerogative of bounty is unaffected by the fact 
that the proceeds of the Crown rights or Admiralty droits 
are now made part of the consolidated fund and do not 
replenish the privy purse. Further, the prize court will 
in council ° rder ta ^ e judicial notice of every order in council material to 
the consideration of matters with which it has to deal, 
and will give the utmost weight and importance to every 
such order short of treating it as an authoritative and 
binding declaration of law. Thus, an order declaring a 
blockade will prima facie justify the capture and condem- 
nation of vessels attempting to enter the blockaded ports, 
but will not preclude evidence to show that the blockade 
is ineffective, and therefore unlawful An order author- 
izing reprisals will be conclusive as to the facts which are 
recited as showing that a case for reprisals exists, and 
will have due weight as showing what, in the opinion of 
His Majesty's advisers, are the best or only means of 
meeting the emergency; but this will not preclude the 
right of any party aggrieved to contend, or the right of 
the court to hold, that these means are unlawful, as 
entailing on neutrals a degree of inconvenience unrea- 
sonable, considering all the circumstances of the case. 
Further, it can not be assumed, until there be a decision 
of the prize court to that effect, that any executive order 
is contrary to law, and all such orders, if acquiesced in 
and not declared to be illegal, will, in the course of time, 
be themselves evidence by which international law and 
usage may be established. (See Wheaton's "Int. Law," 
4th English Ed., pp. 25 and 26.) 

On this part of the case, therefore, their lordships hold 
that Order XXIX, rule 1, of the prize court rules, con- 
strued as an imperative direction to the court, is not 
binding. Under these circumstances the rule must, if 
possible, be construed merely as a direction to the court 
in cases in which it may be determined that, according to 
international law, the Crown has a right to requisition 
the vessel or goods of enemies or neutrals. There is 
much to warrant this construction, for the order in coun- 
cil, by which the prize court rules were made, conforms 
to the provisions of the rules publication act, 1893, and 
on reference to that act it will be found inapplicable to 
orders in council, the validity of which depends on an 
exercise of the prerogative. It is reasonable, therefore, 



INTERNATIONAL LAW! DECISIONS AND NOTES. 187 

to assume that the words "or otherwise/ 7 contained in 
the order in council, refer to such other powers, if any, 
as the Crown possesses of making rules and not to powers 
vested in the Crown by virtue of the prerogative. 

The next question which arises for decision is whether 
the order appealed from can be justified under any power 
inherent in the court as to the sale or realization of prop- 
erty in its custody pending decision of the question to 
whom such property belongs. It can not, in their lord- 
ships' opinion, be held that the court has any such inher- 
ent power as laid down by the president in this case. 
The primary duty of the prize court (as indeed of all 
courts having the custody of property the subject of 
litigation) is to preserve the res for delivery to the per- 
sons who ultimately establish their title. The inherent 
power of the court as to sale or realization is confined to 
cases where this can not be done, either because the res 
is perishable in its nature, or because there is some other 
circumstance which renders its preservation impossible 
or difficult. In such cases it is in the interest of all 
parties to the litigation that it should be sold or realized, 
and the court will not allow the interests of the real owner 
to be prejudiced by any perverse opposition on the part 
of a rival claimant. Such a limited power would not Dut y° fcourt - 
justify the court in directing a sale of the res merely 
because it thought fit so to do, or merely because one of 
the parties desired the sale or claimed to become the 
purchaser. 

It remains to consider the third and perhaps the most .^ ht t0 r^ 111 
difficult question which arises on this appeal — the 
question whether the Crown has, independently of Order 
XXIX, rule 1, any and what right to requisition vessels 
or goods in the custody of the prize court pending the 
decision of the court as to their condemnation or release. 
In arguing this question the attorney general again laid 
considerable stress on the Crown's prerogative, referring 
to the recent decision of the court of appeal in this country 
re a petition of right (31 The Times L. R. 596; [1915] 
3 K. B. 649). There is no doubt that under certain 
circumstances and for certain purposes the Crown may 
requisition any property within the realm belonging to 
its own subjects. But this right being one conferred 
by municipal law is not, as such, enforceable in a court 
which administers international law. The fact, however, 
that the Crown possesses such a right in this country. 



138 INTERNATIONAL, LAW : DECISIONS AND NOTES. 

and that somewhat similar rights are claimed by most 
civilized nations, may well give rise to the expectation 
that, at any rate in times of war, some right on the part 
of a belligerent power to requisition the goods of neutrals 
within its jurisdiction will be found to be recognized by 
international usage. Such usage might be expected 
either to sanction the right of each country to apply in 
this respect its own municipal law, or to recognize a 
similar right of international obligation. 

In support of the former alternative, which is ap- 
parently accepted by Albrecht (" Zeitschrif t fur Volker- 
recht und Bundesstaatsrecht," VI. Band, Breslau, 1912), 
it may be argued that the mere fact of the property of 
neutrals being found within the jurisdiction of a bel- 
ligerent power ought, according to international law, to 
render it subject to the municipal law of that jurisdiction. 
The argument is certainly plausible and may in certain 
cases and for such purposes be sound. In general, 
property belonging to the subject of one power is not 
found within territory of another power without the 
consent of the true owner, and this consent may well 
operate as a submission to the municipal law. A dis- 
tinction may perhaps be drawn in this respect between 
property the presence of which within the jurisdiction 
is of a permanent nature and property the presence of 
which within the jurisdiction is temporary only. The 
goods of a foreigner carrying on business here are not in 
the same position as a vessel using an English port as a 
port of call. Even in the latter case, however, it is 
clear that for some purposes, as, for example, sanitary 
or police regulations, it would become subject to the lex 
loci. After all, no vessel is under ordinary circumstances 
under any compulsion to come within the jurisdiction. 
Different considerations arise with regard to a vessel 
brought within the territorial jurisdiction in exercise 
of a right of war. In the latter case there is no consent 
of the owner or of anyone whose consent might impose 
obligations on the owner. Nevertheless, even here, the 
vessel might well for police and sanitary purposes become 
subject to the municipal law. To hold, however, that 
it became so subject for all purposes, including the 
municipal right of requisition, would give rise to various 
anomalies. 

The municipal law of one nation in respect of the right 
to requisition the property of its subjects differs or may 



INTERNATIONAL LAW: DECISIONS AND NOTES. 139 

differ from that of another nation. The circumstances 
under which, the purposes for which, and the conditions 
subject to which the right may be exercised need not be 
the same. The municipal law of this country does not 
give compensation to a subject whose land or goods are 
requisitioned by the Crown. The municipal law of 
other nations may insist on compensation as a condition 
of the right. The circumstances and purposes under 
and for which the right can be exercised may similarly 
vary. It would be anomalous if the international law 
by which all nations are bound could only be ascertained 
by an inquiry into the municipal law which prevails in 
each. It would be a still greater anomaly if in times of 
war a belligerent could, by altering his municipal law in 
this respect, affect the rights of other nations or their 
subjects. The authorities point to the conclusion that 
international usage has in this respect developed a law 
of its own and has not recognized the right of each nation 
to apply its own municipal law. 

The right of a belligerent to requisition the goods of 
neutrals found within its territory, or territory of which 
it is in military occupation, is recognized by a number of 
writers on international law. It is sometimes referred 
to as the right of angary, and is generally recognized as Angary, 
involving an obligation to make full compensation. 
There is, however, much difference of opinion as to the 
precise circumstances under which and the precise pur- 
poses for which it may be lawfully exercised. It was 
exercised by Germany during the Franco-German War 
of 1870 in respect of property belonging to British and 
Austrian subjects. The German military authorities 
seized certain British ships and sank them in the Seine. 
They also seized certain Austrian rolling stock and util- 
ized it for the transport of troops and munitions of war. 
The German Government offered full compensation, and 
its action was not made the subject of diplomatic protest, 
at any rate by Great Britain. In justifying the action 
of the military authorities with regard to the British 
ships, Count von Bismarck laid stress on the fact " that 
a pressing danger was at hand and every other method 
of meeting it was wanting, so that the case was one of 
necessity," and he referred to Phillimore, "Int. Law," 
Volume III., section 29. He did not rely on the munic- 
ipal law of either France or Germany. 
59650—24 10 



140 INTERNATIONAL LAW: DECISIONS AXT) NOTES. 

Necessity. Q n reference to Phillimore it will be found that he 

limits the right to cases of " clear and overwhelming 
necessity." In this he agrees with De Martens, who 
speaks of the right existing only in cases of "extreme 
necessity" ("Law of Nations," Book VI. , see. 7) ; and with 
Gessner, who says the necessity must be real; that there 
must be no other means less violent u de sauver l'exis- 
tence," and that neither the desire to injure the enemy 
nor the greatest degree of convenience to the belligerent 
is sufficient. ("Droits des Neutres," p. 154, 2d ed., 
Berlin, 1876.) It is difficult to see how the acts of the 
German Government to which reference has been made 
come within the limits thus laid down. It might have 
been convenient to Germany and hurtful to France to 
sink English vessels in the Seine or to utilize Austrian 
rolling stock for transport purposes, but clearly no ex- 
treme necessity involving actual existence had arisen. 
Azuni, on the other hand ("Droit maritime de l'Europe," 
Vol. I., c 3, art. 5). thought that an exercise of the right 
would be justified by necessity or public utility; in other 
words, that a very high degree of convenience to the 
belligerent power would be sufficient. Germany must be 
taken to have asserted and England and Austria to have 
acquiesced in the latter view, which is the view taken 
by Bluntschli ("Droit International," section 795 bis) 
and in the only British prize decision dealing with this 
point. 

war of 1812. The case to which their lordships refer is that of the 

Curlew, the Magnet, etc., reported in Stewart's vice 
admiralty cases (Nova Scotia), page 312. The ships in 
question with their cargoes had been seized by the British 
authorities as prize in the early days of the war with the 
United States of America which broke out in 1812, and 
had been brought into port for adjudication. The 
lieutenant governor of the Province and the admiral and 
commander in chief of His Majesty's ships on that station 
thereupon presented a petition for leave to requisition 
some of the ships and parts of the cargoes pending adju- 
dication. In his judgment Doctor Croke lays it down 
that though as a rule the court has no power of selling or 
bartering vessels or goods in its custody, prior to adjudi- 
cation to any departments of His Majesty's service, 
nevertheless there may be cases of necessity in which the 
right of self-defense supersedes and dispenses with the 
usual modes of procedure. He held that such a case had 



IXTERNATIOXAT. LAW I DECISIONS AND NOTES. 141 

in fact arisen, and accordingly granted the prayer of the 
petitioners: (1) As to certain small arm- -very much and 
immediately needed for the defense of the Province"; 
(2) as to certain oak timbers of which there was "great 
want" in His Majesty's naval yard at Halifax : and (3) as 
to a vessel immediately required for use as a prison ship. 
The appraised value of the property requisitioned was in 
each case ordered to be brought into court. 

It should be observed that with regard to ships and^^ 18 before 
goods of neutrals in the custody of the prize court for 
adjudication, there are special reasons which render it 
reasonable that the belligerent should in a proper case 
have the power to requisition them. The legal property 
or dominion is, no doubt, still in the neutral, but ultimate 
condemnation will vest it in the Crown, as from the date 
of the seizure as prize, and meanwhile all beneficial enjoy- 
ment is suspended. In cases where the ships or the goods 
are required for immediate use, this may well entail 
hardship on the party who ultimately establishes his 
title. To mitigate the hardship in the case of a ship a 
custom has arisen of releasing it to the claimant on bail; 
that is, on giving security for the payment of its appraised 
value. It may well be that in practice this was never 
done without the consent of the Crown, but such consent 
would not be likely to be withheld, unless the Crown 
itself desired to use the ship after condemnation. The 
twenty-fifth section of the naval prize act, 1864, now 
confers on the judge full discretion in the matter. This 
being so, it is not unreasonable that the Crown on its side 
should in a proper case have power to requisition either 
vessel or goods for the national safety. It must be re- 
membered that the neutral may obtain compensation for 
loss suffered by reason of an improper seizure of his vessel 
or goods, but the Crown can never obtain compensation 
from the neutral in respect of loss occasioned by a claim 
to release which ultimately fails. 

The power in question was asserted by the United 
States of America in the Civil War which broke out in 
1861. In the Memphis (Blatchford, 202), in the Ella 
Warley (Blatchford, 204), and in the Stephen Hart 
(Blatchford, 387), Betts, J., allowed the War Department 
to requisition goods in the custody of the prize court, 
and required for purposes in connection with the prosecu- 
tion of the war. In the case of the Peterhoff (Blatchford, 
381) he allowed the vessel itself to be similarly reqnisi- 



142 INTERNATIONAL LAW! DECISIONS AND NOTES. 

tioned by the Navy Department. The reasons of Betts, 
J., as reported, are not very satisfactory, for they leave 
it in doubt whether he considered the right he was en- 
forcing to be a right according to the municipal law of the 
United States overriding the international law or to be 
a right according to the international law. But his 
decisions were not appealed, nor does it appear that they 
led to any diplomatic protest. 

On March 3, 1863, after the decisions above referred to, 
the United States Legislature passed an act (Congress, 
sess. Ill, c. 86, of 1863) whereby it was enacted (sec. 2) 
that the Secretary of the Navy or the Secretary of War 
should be and the}" or either of them were thereby author- 
ized to take any captured vessel, any arms or munitions 
of war or other material for the use of the Government, 
and when the same should have been taken before being 
sent in for adjudication or afterwards, the department for 
whose use it was taken should deposit the value of the 
same in the Treasury of the United States, subject to the 
order of the court in which prize proceedings might be 
taken, or if no proceedings in prize should be taken, to 
be credited to the Navy Department and dealt with 
according to law. 

It is impossible to suppose that the United States 
Legislature in passing this act intended to alter or modify 
the principles of international law in its own interest or 
against the interest of neutrals. On the contrary, the 
act must be regarded as embodying the considered opinion 
of the United States authorities as to the right possessed 
by a belligerent to requisition vessels or goods seized 
as prize before adjudication. Nevertheless, their lord- 
ships regard the passing of the act as somewhat unfor- 
tunate from the standpoint of the international lawyer. 
In the first place, it seems to cast some doubt upon the 
decisions already given by Betts, J. In the second place, 
it tends to weaken all subsequent decisions of the United 
States prize courts on the right to requisition vessels or 
goods, as authorities on international law, for these 
courts are bound by the provisions of the act, whether it 
be in accordance with international law or otherwise. 
In the third place, their lordships are of opinion that the 
provisions of the act go beyond what is justified by 
international usage. The right to requisition recognized 
by international law is not, in their opinion, an absolute 
right, but a right exercisable in certain circumstances 



INTERNATIONAL LAW I DECISIONS AND NOTES. 14& 

and for certain purposes only. Further, international 
usage requires all captures to be brought promptly into 
the prize court for adjudication, and the right to requisi- 
tion, therefore, ought as a general rule to be exercised 
only when this has been done. It is for the court and not 
the executive of the belligerent State to decide whether 
the right claimed can be lawfully exercised in any par- 
ticular case. 

It appears that the British Government, shortly after 
the act was passed, protested against the provisions of 
the second section. The grounds for such protest appear 
in Lord Russell's dispatch of April 21, 1863. The first 
is the primary duty of the court to preserve the subject 
matter of the litigation for the party who ultimately 
establishes his title. In stating it Lord Russell ignores, 
and (having regard to the provisions of the section) was 
probably entitled to ignore, all exceptional cases based 
on the right of angary. The second ground is that such a 
general right as asserted in the section would encourage 
the making of seizures known at the time when they are 
made to be unwarrantable by law merely because the 
property seized might be useful to the belligerent. This 
objection is more serious, but it derives its chief force 
from the fact that the right asserted in the section can be 
exercised before the property seized is brought into the 
prize court for adjudication, and, even when it has been 
so brought in, precludes the judge from dealing judicially 
with the matter. If the right accorded by international 
law to requisition vessels or goods in the custody of the 
court be exercised through the court, and be confined 
to cases in which there is really a question to be tried, 
and the vessel or goods can not, therefore, be released 
forthwith, the objection is obviated. 

It further appears that the United States took the Angary, 
opinion of their own Attorney General on the matter 
(10th vol., Opinions of A. G. of U. S., p. 519), and 
were advised that there was no warrant for the section 
in international law, and that it would not be advisable 
to put it into force in cases where controversy was likely 
to arise. The Attorney General did not, any more than 
Lord Russell, refer to exceptional cases based on the 
right of angary, but dealt only with the provisions of 
the section as a whole. 

Some stress was laid in argument on the cases cited 
in the judgment in the court below upon what is known 



144 INTERNATIONAL, LAW: DECISIONS AND NOTES. 

as "the right of preemption," but in their lordships' 
opinion these cases have little, if any, bearing on the mat- 
ter now in controversy. The right of preemption appears 
to have arisen in the following manner : According to the 
British view of international law, naval stores were 
absolute eontrabrand, and if found on a neutral vessel 
bound for an enemy port were lawful prize. Other 
countries contended that such stores were only contra- 
band if destined for the use of the enemy Government. 
If destined for the use of civilians they were not contra- 
band at all. Under these circumstances the British 
Government, by way of mitigation of the severity of its 
Preemption. own v j eWj consented to a kind of compromise. Instead 
of condemning such stores as lawful prize, it bought them 
out and out from their neutral owners, and this practice, 
after forming the subject of many particular treaties, at 
last came to be recognized as fully warranted by inter- 
national law. It was, however, always confined to naval 
stores, and a purchase pursuant to it put an end to all 
litigation between the Crown on the one hand and the 
neutral owner on the other. Only in cases where the 
title of the neutral was in doubt and the property might 
turn out to be enemy property was the purchase money 
paid into court. It is obvious, therefore, that this 
" right of preemption" differs widely from the right to 
requisition the vessels or goods of neutrals, which is 
exercised without prejudice to, and does not conclude 
or otherwise affect the question whether the vessel or 
goods should or should not be condemned as prize. 
to reqSSn, M On the whole question their lordships have come to the 
following conclusion : A belligerent power has by interna- 
tional law the right to requisition vessels or goods in the 
custody of its prize court pending a decision of the ques- 
tion whether they should be condemned or released, but 
such right is subject to certain limitations. First, 
the vessel or goods in question must be urgently required 
for use in connection with the defense of the realm, the 
prosecution of the war, or other matters involving na- 
tional security. Secondly, there must be a real question 
to be tried, so that it would be improper to order an 
immediate release. And, thirdly, the right must be en- 
forced by application to the prize court, which must 
determine judicially whether, under the particular cir- 
cumstances of the case, the right is exercisable. 



INTERNATIONAL LAW I DECISIONS AND NOTES. 145 

With regard to the first of these limitations, their 
lordships are of opinion that the judge ought, as a rule, 
to treat the statement on oath of the proper officer of the 
Crown to the effect that the vessel or goods which it is 
desired to requisition are urgently required for use in 
connection with the defense of the realm, the prosecution 
of the war, or other matters involving national security, 
as conclusive of the fact. This is so in the analogous 
case of property being requisitioned under the municipal 
law (see Warrington, L. J., in the case of In re a Petition 
of Right, supra, at p. 666) , and there is every reason why 
it should be so also in the case of property requisitioned 
under the international law. Those who are responsible 
for the national security must be the sole judges of what 
the national security requires. It would be obviously 
undesirable that such matters should be made the subject 
of evidence in a court of law or otherwise discussed 
in public. 

With regard to the second limitation, it can be best 
illustrated by referring to the old practice. The first 
hearing of a case in prize was upon the ship's papers, 
the answers of the master and others to the standing 
interrogatories and such special interrogatories as might 
have been allowed, and any further evidence which the 
judge, under special circumstances, thought it reason- 
able to admit. If, on this hearing, the judge was of 
opinion that the vessel or goods ought to be released 
forthwith, an order for release would in general be made. 
A further hearing was not readily granted at the instance 
of the Crown. If, on the other hand, the judge was of 
opinion that the vessel or goods could not be released 
forthwith, a further hearing would be granted at the in- 
stance of the claimant. If the claimant did not desire 
a further hearing, the vessel or goods would be con- 
demned. This practice, though obviously unsuitable 
in many respects to modern conditions, had the ad- 
vantage of demonstrating at an early stage of the pro- 
ceedings whether there was a real question to be tried, 
or whether there ought to be an immediate release of the 
vessel or goods in question. In their lordships' opinion 
the judge should, before allowing a vessel or goods 
to be requisitioned, satisfy himself (having regard, of 
course, to modern conditions) that there is a real case for 
investigation and trial, and that the circumstances are 
not such as would justify the immediate release of the 



146 INTERNATIONAL, LAW I DECISIONS AND NOTES. 

vessel or goods. The application for leave to requisition 
must, under the existing practice, be an interlocutory 
application, and, in view of what has been said, it should 
be supported by evidence sufficient to satisfy the judge 
in this respect. In this manner Lord Russell's objection 
as to the encouragement of unwarranted seizures is 
altogether obviated. 

With regard to the third limitation, it is based on the 
principle that the jurisdiction of the prize court com- 
mences as soon as there is a seizure in prize. If the 
captors do not promptly bring in the property seized 
for adjudication, the court will, at the instance of any 
party aggrieved, compel them so to do. From the 
moment of seizure, the rights of all parties are governed 
by international law. It was suggested in argument 
that a vessel brought into harbor for search might, before 
seizure, be requisitioned under the municipal law. This 
point, if it ever arises, would fall to be decided by a court 
administering municipal law, but from the point of view 
of international law it would be a misfortune if the 
practice of bringing a vessel into harbor for the purpose of 
search — a practice which is justifiable because search at 
sea is impossible under the conditions of modern war- 
fare — were held to give rise to rights which could not 
arise if the search took place at sea. 

It remains to apply what has been said to the present 
case. In their lordships' opinion, the order appealed from 
was wrong, not because, as contended by the appellants, 
there is by international law no right at all to requisition 
ships or goods in the custody of the court but because the 
judge had before him no satisfactory evidence that such 
a right was exercisable. The affidavit of the director of 
army contracts, following the words of Order XXIX, rule 1 , 
merely states that it is desired on behalf of His Majesty 
to requisition the copper in question. It does not state 
that the copper is urgently required for national purposes. 
Further, the affidavit of Sven Hoglund, which is unan- 
swered, so far from showing that there was any real case 
to be tried, suggests a case for immediate release. Under 
these circumstances, the normal course would be to dis- 
charge the order appealed from without prejudice to 
another application by the procurator general supported 
by proper evidence. But the copper in question has long 
since been handed over to the war department, and, if 
not used up, at any rate can not now be identified. No 



INTERNATIONAL LAW : DECISIONS AND NOTES. 147 

order for its restoration can therefore be made, and it 
would be wrong to require the Government to provide 
other copper in its place. Under the old procedure, the 
proper course would have been to give the appellant, in 
case his claim to the copper be ultimately allowed, leave 
to apply to the court for any damage he may have 
suffered by reason of its having been taken by the Govern- 
ment under the order. 

It was, however, suggested that the procedure pre- 
scribed by the existing prize court rules precludes the pos- 
sibility of the court awarding damages or costs in the 
existing proceedings. Under the old practice the captors 
were parties to every proceeding for condemnation, and 
damages and costs could in a proper case have been 
awarded as against them. But every action for con- 
demnation is now instituted by the procurator general on 
behalf of the Crown, and the captors are not necessarily 
parties. It is said that neither damages nor costs can be 
awarded against the Crown. It is not suggested that the 
persons entitled to such damages or costs are deprived of 
all remedy, but it is urged that in order to recover either 
damages or costs, if damages or costs are claimed, they 
must themselves institute fresh proceedings as plaintiffs, 
not against the Crown, but against the actual captors. 
This result would, in their lordships' opinion, be extremely 
inconvenient, and would entail considerable hardship on 
claimants. If possible, therefore, the prize court rules 
ought to be construed so as to avoid it, and, in their lord- 
ships' opinion, the prize court rules can be so construed. 

It will be observed that, by Order I, rule 1, the expres- 
sion "captor" is, for the purposes of proceedings in any 
cause or matter, to include "the proper officer of the 
Crown," and "the proper officer of the Crown" is defined 
as the King's proctor or other law officer or agent author- 
ized to conduct prize proceedings on behalf of the Crown 
within the jurisdiction of the court. 

It is provided by Order II, rule 3, that every cause ^^^ of or - 
instituted for the condemnation of a ship or (by virtue of 
Order I, rule 2) goods shall be instituted in the name of 
the Crown, though the proceedings therein may, with the 
consent of the Crown, be conducted by the actual captors. 
By Order II, rule 7, in a cause instituted against the 
"captor" for requisition or damages, the writ is to be in 
the form No. 4 of Appendix A. This would appear to 
contemplate that an action for damages can be instituted 



148 INTERNATIONAL LAW! DECISIONS AND NOTES. 

against the proper officer of the Crown, any argument to 
the contrary, based upon the form of writ as originally 
framed, being rendered invalid by the alterations in such 
form introduced by rule No. 5 of the prize court rules under 
the order in council dated March 11, 1915. It is not, 
however, necessary to decide this point. 

Order V provides for proceedings in case of failure to 
proceed by captors. Under rules 1 and 2, which contem- 
plate the case of no proceedings having been yet instituted, 
the claimant must issue a writ, and can then apply for 
relief by way of restitution, with or without damages and 
costs. It does not appear against whom the writ is to be 
issued, whether against the actual captors or the proper 
officer of the Crown who ought to have instituted pro- 
ceedings. Under rule 3, however, which contemplates 
that proceedings have been instituted, it is provided that, 
if the captors (which, in the case of an action for con- 
demnation, must, of course, mean the proper officer of the 
Crown) fail to take any steps within the respective times 
provided by the rules, or, in the opinion of the judge, fail 
to prosecute with effect the proceedings for adjudication, 
the judge may, on the application of a claimant, order the 
property to be released to the claimant, and may make 
such order as to damages or costs as he thinks fit. This 
rule, therefore, distinctly contemplates that the Crown or 
its proper officer may be made liable for damages or costs. 
Neither damages nor costs could be awarded against per- 
sons who were not parties to the proceedings, and it can 
hardly have been the intention of the rules to make third 
parties liable for the default of those who were actually 
conducting the proceedings. 

By Order VI proceedings may be discontinued by 
leave of the judge, but such discontinuance is not to 
affect the right, if any, of the claimant to costs and dam- 
ages. This again contemplates that in an action for 
condemnation the claimant may have a right to costs 
and damages and, as the Crown is the only proper 
plaintiff in such an action, to costs and damages against 
the Crown. 

Order XIII is concerned with releases. They are to 
be issued out of the registry and, except in the six cases 
referred to in rule 3, only with the consent of the judge. 
One of the accepted cases is when the property is the 
subject of proceedings for condemnation — that is, of 
proceedings in which the crown by its proper officer is 



INTEE NATIONAL LAW : DECISIONS AND NOTES. 149 

plaintiff, and when a consent to restitution signed by the 
captor (again by the proper officer of the Crown) has 
been filed. Another excepted case is when proceedings 
instituted by or on behalf of the Crown are discontinued. 
By rule 4 no release is to affect the right of any of the 
owners of the property to costs and damages against the 
" captor," unless so ordered by the judge. In the cases 
last referred to " captor" must again mean the proper 
officer who is suing on behalf of the Crown. 

Order XLIV deals with appeals, and provides that in 
every case the appellant must give security for costs to 
the satisfaction of the judge. In cases of appeals from a 
condemnation or in other cases in which the Crown by its 
proper officer would be a respondent, this provision could 
serve no useful purpose unless costs could be awarded in 
favor of the Crown, and if costs can be awarded in favor 
of, it follows that they can similarly be awarded against 
the Crown. 

It is to be observed that unless the judgment or order 
appealed from be stayed pending appeal, rule 4 of this 
order contemplates that persons in whose favor it is 
executed will give security for the due performance of 
such order as His Majesty in council may think fit to 
make. Their lordships were not informed whether such 
security was given in the present case. 

In their lordships' opinion these rules are framed on the 
footing that where the Crown by its proper officer is a 
party to the proceedings it takes upon itself the liability 
as to damages and costs to which under the old procedure 
the actual captors were subject. This is precisely what 
might be expected, for otherwise the rules would tend 
to hamper claimants in pursuing the remedies open to 
them according to international law. The matter is 
somewhat technical, for even under the old procedure 
the Crown, as a general rule, in fact defrayed the damages 
and costs to which the captors might be held liable. 
The common law rule that the Crown neither paid nor 
received costs is, as pointed out by Lord Macnaghten 
in Johnson v. The King (20 The Times L. R. 697; [1904] 
A. C. 817) subject to exceptions. 

Their lordships, therefore, have come to the conclu- Decision, 
sion that in proceedings to which, under the new prac- 
tice, the Crown instead of the actual captors is a party, 
both damages and costs may in a proper case be awarded 
against the Crown or the officer who in such proceedings 
represents the Crown. 



150 INTERNATIONAL LAW : DECISIONS AND NOTES. 

The proper course, therefore, in the present case is to 
declare that upon the evidence before the president he 
was not justified in making the order the subject of this 
appeal and to give the appellants leave in the event of 
their ultimately succeeding in the proceedings for con- 
demnation to apply to the court below for such damages, 
if any, as they may have sustained by reason of the order 
and what has been done under it. 

Their lordships will humbly advise His Majesty accord- 
ingly, but inasmuch as the case put forward by the 
appellants has succeeded in part only, they do not think 
that any order should be made as to the costs of the 
appeal. 

" COMTE DE SMET DE NAEYER." 

November 17, 1916. 
[1] Entscheidungen des Oberprisengerrichts, 209. 

In the prize matter concerning the Belgian full-rigged 
ship Comte de Smet de Naeyer, Antwerp being her home 
port, the imperial superior prize court of Berlin, in the 
sitting of November 17, 1916, has found as follows: 

"As a result of the appeal of the imperial commissary 
the decision of the Hamburg Prize Court of May 20, 
1916, is annulled. The ship is to be condemned. The 
claim is refused. The plaintiff must bear the costs of 
both instances." 

REASONS. 



Decision. 



esse 



statement of the After the capture of Antwerp, along with other Bel- 
gian ships lying in that port, the full-rigged ship Comte 
de Smet de Naeyer was seized by the German military 
forces. 

The ship was built of steel in 1877 and until 1906 was 
used as a freight ship. In the latter year she was ac- 
quired by the Belgian company, " Association Maritime 
Beige, S. A.," of Antwerp, with a capital of 500,000 
francs, the aims and purposes of which are stated 
as follows: 

rarmement, 1' exploitation, l'affretement, 1'achat, la location et vente 
de navires a voile et a vapeur et toutes les operations de commerce, 
d'industrie et de finances se rattachant a quelque titre que ce soit a la 
navigation maritime et fluviale, etc. 

Le ou les navires de la soci^te pourront dtre affectes a Tenseigne- 
ment professionnel maritime, etc. 



INTERNATIONAL LAW. DECISIONS AND NOTES. 151 

The company has repeatedly obtained subventions 
from the Belgian Government which is in possession of 
obligations of the company to the amount of 412,000 
francs. The school of navigation established by the 
company is under the supervision of the State. 

After the company had secured the ship the latter school ship, 
did not again leave the harbor of Antwerp. She was 
used as a school ship and was supplied with special 
equipment for purposes of instruction, which would have 
to be removed should she again serve for ocean-going 
purposes. Her last certificate of classification is dated 
October, 1910. For sea trips the school owns the four- 
masted bark VAvenir. 

Upon notification by the imperial prize court of Ham- 
burg, the owner has submitted a claim for the release of 
the ship. 

The prize court found for the release of the ship. 
The appeal from this decision entered by the imperial 
commissary is well founded. 

As has been explained in detail in the decision of the sh '^* rchant 
competent court of October 6, 1916, in the matter of 
the Primavera, the prize regulations in agreement with 
the London declaration are to be understood to mean by 
the expression " Merchant ships" any ocean-going ship 
that is not the property of the State. If this results 
distinctly from article 2 of the prize court regulations 
according to which only neutral public ships are excepted 
from the exercise of the prize law, it is also explicitly 
stated in the London conference that the- expression 
" navire de commerce" includes all ships that are not 
public ships, and, accordingly, in article 6 of the prize 
regulations, it was regarded as necessary by way of ex- 
ception to exempt certain ships from seizure that are 
not built to enter ocean service for gain, and, therefore, 
would not be regarded as merchant ships in the nar- 
rower sense. Therefore, application of the prize law to a 
school ship can not be objected to. 

The ship is owned by a Belgian joint-stock company 0w n«r- 
whose purposes are commercial enterprises of every sort. 
Therefore, it is not a public ship. It does not require 
further exposition to show that this is in no way changed 
by the fact that the Belgian State occasionally grants 
subventions to the corporation and has taken over a 
considerable number of bonds of the said company. 
Nor is it of importance that for years, or since she bo- 



152 INT KRN AT TONAL, LAW! INCISIONS AND XOTK3. 

came a school ship, the ship has no longer gone on ocean 
trips, but has been lying at anchor in the port of Ant- 
werp. It is true that as stated by the plaintiff, lighters, 
small tug boats and similar craft, which merely serve 
for port traffic, are not subject to the rules of maritime 
warfare (Cf. decision of this court of June 27, 1916). 

On the other hand, the ship in question did not cease, 
even in the office it was fulfilling at that time, to be a 
seagoing ship ; she can, moreover, easily be retransformed 
into a seagoing freight ship, while it does not matter 
what it would have been necessary to do to make her 
seaworthy for any and all purposes. 

^port of Ant- yy e nee( j no t discuss whether or not at the time of 
the seizure, the port of Antwerp was a place of maritime 
war operations. The right of prize is not exercised 
merely in a place of war operations, but wheresoever sea 
navigation takes place, and, accordingly, not simply on 
the high seas, but also in bays and ports that serve as 
bases for ocean-going traffic. This is no less true as 
regards the port of Antwerp because the mouth of the 
Escaut is not in Belgian jurisdiction. 

tson a xj e Conven * Finally it can also not be admitted that, as the lower 
instance assumed, school ships belong to those ships which, 
according to article 4 of the XI convention of the Second 
Hague Conference are intrusted with scientific missions, 
^scientific pur- Whether this article 4, according to its purport, is to 
be interpreted rather in an extensive than in a restrictive 
sense, as the judge of first instance believes, need not here 
be discussed, because its text is clear and requires no 
special interpretation. It is evident that a school ship 
serves no scientific purposes. To be sure, to the thorough 
training of a ship's officer and ship's captain, a certain 
scientific basis is necessary, and it can not be gainsaid 
that at naval schools instruction is imparted in scien- 
tific subjects, mathematics, astronomy, etc. It ma}' even 
be admitted that not only the research but also the 
instruction is a problem of science. The latter, however, 
only in so far as science as such is taught, as the distinct 
and definite science, as one in all its branches, and in so 
far as it serves for the development of scholars or as a 
preliminary study for one of the learned professions. 
Seamanship is not a scholarly, but a practical profession. 
The naval school is not a school for the sciences, but a 
professional school. It can no more be said of such a 
school than of a mining school in which also a theoretical 



poses. 



INTERNATIONAL, LAW I DECISIONS AND NOTES. 153 

and, therefore, scientific basis is laid, that it concerns 
itself with scientific problems. 

If, therefore, the plaintiff can not justify his appeal 
upon the exception specified under article 6 of the prize 
regulations, because the seized ship is a school ship, it 
requires no further examination to see whether the appli- 
cation of this same article 6 would also be excluded on 
the ground that after the capture of Antwerp, as must be 
assumed, the operation of the naval school came to an 
end, so that at the time of the seizure the ship, at all 
events, no longer served purposes of instruction. 



THE "APPAM." 

March 6, 1917. 
243 U. S. Reports, 124. 



Mr. Justice Day delivered the opinion of the court: 
These are appeals from the District Court of the 
United States for the Eastern District of Virginia, in two 
admiralty cases. No. 650 was brought by the British & 
African Steam Navigation Co. (Ltd.), owner of the British 
steamship Appam, to recover possession of that vessel. 
No. 722 was a suit by the master of the Appam to recover 
possession of the cargo. In each of the cases the decree 
was in favor of the libellant. 

The facts are not in dispute, and from them it appears: Facts of case. 
That during the existence of the present war between 
Great Britain and Germany, on the 15th day of January, 
1916, the steamship Appam was captured on the high 
seas by the German cruiser, Moewe. The Appam was a 
ship under the British flag, registered as an English ves- 
sel, and is a modern cargo and passenger steamship of 
7,800 tons burden. At the time of her capture she was 
returning from the West Coast of Africa to Liverpool, 
carrying a general cargo of cocoa beans, palm oil kernels, 
tin, maize, 16 boxes of specie, and some other articles. 
At the West African port she took on 170 passengers, 
8 of whom were military prisoners of the English Govern- 
ment. She had a crew of 160 or thereabouts, and car- 
ried a 3-pound gun at the stern. The Appam was 
brought to by a shot across her bows from the Moewe, 
when about a hundred yards away, and was boarded with- 
out resistance by an armed crew from the Moewe. This 
crew brought with them two bombs, one of which was 



154 INTERNATIONAL IAW I DECISIONS AND NOTES. 

slung over the bow and the other over the stern of the 
Appam. An officer from the Moewe said to the captain 
of the Appam that he was sorry he had to take his ship, 
asked him how many passengers he had, what cargo, 
whether he had any specie, and how much coal. When 
the shot was fired across the bows of the Appam, the cap- 
tain instructed the wireless operator not to touch the 
wireless instrument, and his officers not to let anyone 
touch the gun on board. The officers and crew of the 
Appam, with the exception of the engine room force, 35 
in number, and the second officer, were ordered on board 
the Moewe. The captain, officers, and crew of the Appam 
were sent below, where they were held until the evening 
of the 17th of January, when they and about 150 others, 
officers and crews of certain vessels previously sunk by 
the Moewe, were ordered back to the Appam and kept 
there as prisoners. At the time of the capture, the senior 
officer of the boarding party told the chief engineer of the 
Appam he was now a member of the German Navy; if he 
did not obey orders his brains would be blown out, but if 
he obeyed, not a hair of his head should be touched. 
The Appam 's officer was instructed to tell his staff the 
same thing, and if they did not obey orders they would be 
brought to the German officer and shot. Inquiries were 
made by the German officer in command of the Appam 
as to revolutions of the engines, the quantity of coal on 
hand and the coal consumption for different speeds, and 
instructions were given that steam be kept up handy, and 
afterwards the engineer was directed to set the engines 
at the revolutions required, and the ship got under way. 
Treatment. Lieutenant Berg, who was the German officer in com- 

mand of the Appam after its capture, told the engineer 
on the second morning that he was then in charge of the 
ship, asked of him information as to fuel consumption, and 
said that he expected the engineer to help him all he could, 
and the more he did for him the better it would be for 
everybody on the ship. The engineer said he would, and 
did so. The engines were operated with a bomb secured 
to the port main injector valve, and a German sailor sta- 
tioned alongside the bomb with a revolver. There was a 
guard below of four or five armed Germans, who were 
relieved from time to time, but did not interfere with the 
working of the ship. The German officer, Lieutenant 
Berg, gave directions as to working the engines, and was 
the onlv officer on board who wore a uniform. 



INTERNATIONAL LAW : DECISIONS AND NOTES. 155 

On the night of the capture, the specie in the specie 
room was taken on board the Moewe. After Lieutenant 
Berg took charge of the Appam, bombs were slung over 
her bow and stern, one large bomb, said to contain about 
200 pounds of explosive, was placed on the bridge, and 
several smaller ones in the chart room. Lieutenant Berg 
informed the captain of the Appam, pointing to one of the 
bombs, " That is a bomb; if there is any trouble, mutiny, 
or attempt to take the ship, I have orders to blow up the 
ship instantly." He also said, " There are other bombs 
about the ship; I do not want to use them, but I shall 
be compelled to if there is any trouble." The bombs 
were kept in the positions stated until the ship arrived at 
the Virginia Capes, when they were removed. Lieuten- 
ant Berg, on reaching Hampton Roads, asked the crew 
of the Appam to drop the anchor, as he had not men to 
do it. 

During the trip to the westward, the officers and crew 
of the Appam were not allowed to see the ship's compass to 
ascertain her course, and all lights were obscured during 
the voyage. The German prisoners, with the exception 
of two who went on board the Moewe, were armed and 
placed over the passengers and crew of the Appam as a 
guard all the way across. For two days after the capture, 
the Appam remained in the vicinity of the Moewe, and 
then was started westward. Her course for the first two 
or three days was southwesterly, and afterwards west- 
erly, and was continued until her arrival at the Virginia 
Capes on the 31st of January. The engine-room staff of 
the Appam was on duty operating the vessel across to the 
United States; the deck crew of the Appam kept the 
ship clean, and the navigation was conducted entirely by 
the Germans, the lookouts being mostly German prisoners. 

At the time of the capture, the Appam was approxi- 
mately distant 1,590 miles from Emden, the nearest Ger- 
man port; from the nearest available port, namely, 
Punchello, in the Madeiras, 130 miles; from Liverpool, 
1,450 miles; and from Hampton Roads, 3,051 miles. 
The Appam was found to be in first-class order, sea- 
worthy, with plenty of provisions, both when captured 
and at the time of her arrival in Hampton Roads. 

The order or commission delivered to Lieutenant Berg 
by the commander of the Moewe is as follows : 

59650—24 11 



Libel. 



156 INTERNATIONAL LAW! DECISIONS AND NOTES. 

Friz? Master! 8 to "Information for the American authorities. The 
bearer of this, lieutenant of the naval reserve, Berg, is 
appointed by me to the command of the captured English 
steamer Appam and has orders to bring the ship into the 
nearest American harbor and there to lay up. Kom- 
mando S. M. H. Moewe. Count Zu Dohna, cruiser cap- 
tain and commander. (Imperial Navy Stamp.) Kom- 
mando S. M. H. Moewe. 11 

Upon arrival in Hampton Roads, Lieutenant Berg 
reported his arrival to the collector, and filed a copy of 
his instructions to bring the Appam into the nearest 
American port and there to lay up. 

On February 2, his excellency, the German ambassa- 
dor, informed the State Department of the intention, 
under alleged treaty rights, to stay in an American port 
until further notice, and requested that the crew of the 
Appam. be detained in the United States for the remainder 
of the war. 

The prisoners brought in by the Appam were released 
by order of the American Government. 

On February 16, and 16 days after the arrival of the 
Appam in Hampton Roads, the owner of the Appam filed 
the libel in case No. 650, to which answer was filed on 
March 3. On March 7, by leave of court, an amended 
libel was filed, by which the libellant sought to recover 
the Appam upon the claim that holding and detaining the 
vessel in American waters was in violation of the law of 
nations and the laws of the United States and of the neu- 
trality of the United States. The answer of the respond- 
ents to the amended libel alleged that the Appam was 
brought in as a prize by a prize master, in reliance upon 
the treaty of 1799 between the United States and Prussia 
(8 Stat, at L. 162) ; that by the general principles of inter- 
national law the prize master was entitled to bring his 
ship into the neutral port under these circumstances, and 
that the length of stay was not a matter for judicial deter- 
mination; and that proceedings had been instituted in 
a proper prize court of competent jurisdiction in Ger- 
many for the condemnation of the Appam as a prize of 
war; and averred that the American court had no juris- 
diction. 

The libel against the Appam 1 s cargo was filed on March 
13, 1916, and answer filed on March 31. During the 
progress of the case, libellant moved the court to sell a 
part of the cargo as perishable; on motion the court ap- 



INTERNATIONAL LAW I DECISIONS AND NOTES. 157 

pointed surveyors, who examined the cargo and reported 
that the parts so designated as perishable should be sold ; 
upon their report orders of sale were entered, under 
which such perishable parts were sold, and the proceeds 
of that sale, amounting to over $600,000, are now in the 
registry of the court, and the unsold portions of the cargo 
are now in the custody of the marshal of the Eastern Dis- 
trict of Virginia. 

The argument in this case has taken wide range, and 
orally and in printed briefs counsel have discussed many 
questions which we do not consider necessary to decide in 
determining the rights involved in these appeals. 

From the facts which we have stated, we think the 
decisive questions resolve themselves into three: First, 
was the use of an American port, under the circumstances 
shown, a breach of this nation's neutrality under the 
principles of international law? Second, was such use 
of an American port justified by the existing treaties be- 
tween the German Government and our own? Third, 
was there jurisdiction and right to condemn the Appavi, 
and her cargo in a court of admiralty of the United States ? 

It is familiar international law that the usual course 
after the capture of the Appam would have been to take ( duties of Neu- 
her into a German port, where a prize court of that nation 
might have adjudicated her status and, if it so deter- 
mined, condemned the vessel as a prize of war. Instead 
of that, the vessel was neither taken to a German port, 
nor to the nearest port accessible of a neutral power, but 
was ordered to, and did, proceed over a distance of move 
than 3,000 miles, with a view to laying up the captured 
ship in an American port. 

It was not the purpose to bring the vessel here within 
the privileges universally recognized in international law, 
i. e., for necessary fuel or provisions, or because of stress 
of weather or necessity of repairs, and to leave as soon as 
the cause of such entry was satisfied or removed. The 
purpose for which the Appam was brought to Hampton 
Roads, and the character of the ship, are emphasized in 
the order which we have quoted, to take her to an Ameri- 
can port and there lay her up, and in a note from his ex- 
cellency, the German ambassador, to the Secretary of 
State, in which the right was claimed to keep the vessel 
in an American port until further notice (Diplomat i<" 
Correspondence with Belligerent Governments Relating 
to Neutral Rights and Duties, Department of Stale, 



158 INTERNATIONAL, LAW: DECISIONS AND NOTES. 

European War No. 3, p. 331), and a further communica- 
tion from the German ambassador, forwarding a memo- 
randum of a telegram from the German Government con- 
cerning the Appam (Idem, p. 333), in which it was stated: 
u Appam is not an auxiliary cruiser, but a prize. There- 
fore she must be dealt with according to article 19 of 
Prusso-American treaty of 1799. Article 21 of Hague 
convention concerning neutrality at sea is not applicable, 
as this convention was not ratified by England and is 
therefore not binding in present war according to article 
28. The above-mentioned article 19 authorizes a prize 
ship to remain in American ports as long as she pleases. 
Neither the ship nor the prize crew can therefore be in- 
terned nor can there be question of turning the prize over 
to English." 

In view of these facts, and this attitude of the Im- 
perial Government of Germany, it is manifest that the 
Appam was not brought here in any other character than 
as a prize, captured at sea by a cruiser of the German 
Navy, and that the right to keep her here, as shown in 
the attitude of the German Government and in the 
answer to the libel, was rested principally upon the Prus- 
sian-American treaty of 1799. 

The principles of international law recognized by this 
Government, leaving the treaty aside, will not permit the 
ports of the United States to be thus used by belligerents. 
If such use were permitted, it would constitute of the 
ports of a neutral country harbors of safety into which 
prizes, captured by one of the belligerents, might be safely 
brought and indefinitely kept. 
tud? 6 " * 11 atti " From the beginning of its history this country has 
been careful to maintain a neutral position between war- 
ring Governments, and not to allow the use of its ports in 
violation of the obligations of neutrality; nor to permit 
such use beyond the necessities arising from the perils 
of the seas or the necessities of such vessels as to sea- 
worthiness, provisions, and supplies. Such usage has 
the sanction of international law (Dana's Note to 
Wheaton on International Law, 1866, 8th Am. ed., sec. 
391), and accords with our own practice (7 Moore's Digest 
of International Law, 936-938) . 

A policy of neutrality between warring nations has 
been maintained from 1793 to this time. In that year 
President Washington firmly denied the use of our ports 
to the French minister for the fitting out of privateers 



INTERNATIONAL LAW '. DECISIONS AND NOTES. 159 

to destroy English commerce. This attitude led to the 
enactment of the neutrality act of 1794, afterwards em- 
bodied in the act of 1818, enacting a code of neutrality, 
which, among other things, inhibited the fitting out and 
arming of vessels; the augmenting or increasing of the 
force of armed vessels; or the setting on foot in our terri- 
tory of military expeditions; and empowering the Presi- 
dent to order foreign vessels of war to depart from our 
ports, and compelling them so to do when required by 
the law of nations. (4 Moore, International Arbitra- 
tions, 3967 et seq.) 

This policy of the American Government was em- 
phasized in its attitude at The Hague Conference of 1907. 
Article 21 of The Hague treaty provides: 

"A prize may only be brought into a neutral port on 
account of unseaworthiness, stress of weather, or want 
of fuel or provisions. 

"It must leave as soon as the circumstances which 
justified its entry are at an end. If it does not, the 
neutral power must order it to leave at once; should it- 
fail to obey, the neutral power must employ the means 
at its disposal to release it with its officers and crew and 
to intern the prize crew." 

Article 22 provides: 

"A neutral power must, similarly, release a prize 
brought into one of its ports under circumstances other 
than those referred to in article 21." 

To these articles, adherence was given by Belgium, 
France, Austria-Hungary, Germany, the United States, 
and a number of other nations. They were not ratified 
by the British Government. This Government refused 
to adhere to article 23, which provides: 

"A neutral power may allow prizes to enter its ports 
and roadsteads, whether under convoy or not, when they 
are brought there to be sequestrated pending the decision 
of a prize court. It may have the prize taken to another 
of its ports. 

"If the prize is convoyed by a warship, the prize crew 
may go on board the convoying ship. 

"If the prize is not under convoy, the prize crew are 
left at liberty." 

And in the proclamation of the convention the Presi- 
dent recited the resolution of the Senate adhering to it, 
subject to "the reservation and exclusion of its article 2?>, 
and with the understanding that the last clause of article 



160 INTERNATIONAL LAW : DECISIONS AND NOTES. 

3 of the said con volition implies the duty of a neutral 
power to make the demand therein mentioned for the 
return of a ship captured within the neutral jurisdiction 
and no longer within that jurisdiction." (36 Stat. L. 
2438.) 

While this treaty may not be of binding obligation, 
owing to lack of ratification, it is very persuasive as 
showing the attitude of the American Government when 
the question is one of international law; from which it 
appears clearly that prizes could only be brought into 
our ports upon general principles recognized in inter- 
national law, on account of unseaworthiness, stress of 
weather, or want of fuel or provisions, and we refused to 
recognize the principle that prizes might enter our ports 
and roadsteads, whether under convoy or not, to be 
sequestrated pending the decision of a prize court. From 
the history of the conference it appears that the reason 
for the attitude of the American delegates in refusing to 
accept article 23 was that thereby a neutral might be 
involved in participation in the war to the extent of 
giving asylum to a prize which the belligerent might not 
be able to conduct to a home port. (See Scott, Peace 
Conferences, 1899-1907, vol. 2, pp. 237 et seq.) 

Much stress is laid upon the failure of this Government 
to proclaim that its ports were not open to the reception 
of captured prizes, and it is argued that, having failed 
to interdict the entrance of prizes into our ports, per- 
mission to thus enter must be assumed. But, whatever 
privilege might arise from this circumstance, it would not 
warrant the attempted use of one of our ports as a place 
in which to store prizes indefinitely, and certainly not 
where no means of taking them out are shown except by 
the augmentation of her crew, which would be a clear 
violation of established rules of neutrality. 
PrSaf Wlth A s to the contention on behalf of the appellants that 
article 19 of the treaty of 1799 (8 Stat. L. 172) justifies 
bringing in and keeping the Appam in an American port, 
in the situation which we have outlined, it appears that, 
in response to a note from his excellency, the German 
ambassador, making that contention, the American Secre- 
tary of State, considering the treaty, announced a differ- 
ent conclusion (Diplomatic Correspondence with Bellig- 
erent Governments, supra, pp. 335 et seq.) ; and we think 
this view is justified by a consideration of the terms of 
the treaty. Article 19 of the treaty of 1799, using the 



INTERNATIONAL LAW I DECISIONS AND NOTES. 161 

translation adopted by the American State Department, 
reads as follows : 

"The vessels of war, public and private, of both parties, 
shall cany [conduire] freely, wheresoever they please, the 
vessels and effects taken [pris] from their enemies, without 
being obliged to pay any duties, charges, or fees to officers 
of admiralty, of the customs, or any others; nor shall 
such prizes [prises] be arrested, searched or put under 
legal process, when they come to and enter the ports of 
the other party, but may freely be carried [conduites] out 
again at any time by their captors [le vaisseau preneur] 
to the places expressed in their commissions, which the 
commanding officer of such vessel [le dit vaisseau] shall 
be obliged to show. (But conformably to the treaties 
existing between the United States and Great Britain, 
no vessel [vaisseau] that shall have made a prize [prise] 
upon British subjects shall have a right to shelter in the 
ports of the United States, but if [il est] forced therein 
by tempests, or any other danger, or accident of the sea, 
they [il sera] shall be obliged to depart as soon as possi- 
ble.) ' ' The provision concerning the treaties between 
the United States and Great Britain is no longer in force, 
having been omitted by the treaty of 1828 [8 Stat. L. 
378]. See Compilation of Treaties in Force, 1904, pages 
641 and 646. 

We think an analysis of this article makes manifest 
that the permission granted is to vessels of war and their 
prizes, which are not to be arrested, searched, or put 
under legal process when they come into the ports of 
the high contracting parties, to the end that they may 
be freely carried out by their captors to the places 
expressed in their commissions, which the commanding 
officer is obliged to show. When the Appam came into 
the American harbor she was not in charge of a vessel 
of war of the German Empire. She was a merchant 
vessel, captured on the high seas and sent into the 
American port with the intention of being kept there 
indefinitely, and without any means of leaving that port 
for another, as contemplated in the treaty, and required 
to be shown in the commission of the vessel bringing in 
the prize. Certainly such use of a neutral port is very 
far from that contemplated by a treaty which made 
provision only for temporary asylum for certain purposes, 
and can not be held to imply an intention to make of an 
American port a harbor of refuge for captured prizes of a 



162 INTERNATIONAL LAW: DECISIONS AND NOTES. 

belligerent Government. We can not avoid the conclu- 
sion that in thus making use of an American port there 
was a clear breach of the neutral rights of this Govern- 
ment, as recognized under principles of international law 
governing the obligations of neutrals, and that such use 
of one of our ports was in no wise sanctioned by the treaty 
of 1799. 
eoSrt! sdiction of -^ remains to inquire whether there was jurisdiction 
and authority in an admiralty court of the United States, 
under these circumstances, to order restoration to an 
individual owner of the vessel and cargo. 

The earliest authority upon this subject in the decisions 
of this court is found in the case of Glass v. The Betsy, 
3 Dall. 6, decided in 1794, wherein it appeared that the 
commander of the French privateer, the Citizen Genet, 
captured as a prize on the high seas the sloop Betsy, and 
sent the vessel into Baltimore, where the owners of the 
sloop and cargo filed a libel in the district court of Mary- 
land, claiming restitution because the vessel belonged to 
subjects of the King of Sweden, a neutral power, and the 
cargo was owned jointly by Swedes and Americans. The 
district court denied jurisdiction, the circuit court 
affirmed the decree, and an appeal was prosecuted to 
this court. The unanimous opinion was announced by 
Mr. Chief Justice Jay, holding that the district courts of 
the United States possessed the powers of courts of 
admiralty, whether sitting as an instance or as a prize 
court, and sustained the jurisdiction of the district court 
of Maryland, and held that that court was competent to 
inquire into and decide whether restitution should be 
made to the complainants conformably to the laws of 
nations and the treaties and laws of the United States. 

The question came again before this court in the case 
ot the Santissima Trinidad, decided in 1822, 7 Wheat. 283 
In that case it was held that an illegal capture would be 
invested with the character of a tort, and that the original 
owners were entitled to restitution when the property 
was brought within our jurisdiction. The opinion was 
delivered by Mr. Justice Story, and, after a full discussion 
of the matter, the court held that such an illegal capture, 
if brought into the jurisdiction of the courts of the United 
States, was subject to condemnation and restitution to 
the owners, and the learned justice said: 

"If, indeed, the question were entirely new, it would 
deserve very grave consideration, whether a claim 



INTERNATIONAL LAW I DECISIONS AND NOTES. 163 

founded on a violation of our neutral jurisdiction could 
be asserted by private persons, or in any other manner 
than a direct intervention of the Government itself. In 
the case of a capture made within a neutral territorial 
jurisdiction, it is well settled that, as between the captors 
and the captured, the question can never be litigated. 
It can arise only upon a claim of the neutral sovereign, 
asserted in his own courts or the courts of the power 
having cognizance of the capture itself for the purposes 
of prize. And, by analogy to this course of proceeding, 
the interposition of our own Government might seem fit 
to have been required before cognizance of the wrong 
could be taken by our courts. But the practice from the 
beginning in this class of causes, a period of nearly 30 
years, has been uniformly the other way; and it is now 
too late to disturb it. If any inconvenience should grow 
out of it, from reasons of state policy or executive 
discretion, it is competent for Congress to apply at its 
pleasure the proper remedy" (p. 349). 

" Whatever may be the exemption of the public ship 
herself, and of her armament and munitions of war, the 
prize property which she brings into our ports is liable to 
the jurisdiction of our courts, for the purpose of exami- 
nation and inquiry, and if a proper case be made out, for 
restitution to those whose possession has been devested 
by a violation of our neutrality; and if the goods are 
landed from the public ship in our ports, by the express 
permission of our own Government, that does not vary 
the case, since it involves no pledge that, if illegally 
captured, they shall be exempted from the ordinary 
operation of our laws" (p. 354). 

In the subsequent cases in this court this doctrine has 
not been departed from. X 5 Invincible, 1 Wheat. 238, 
258, the Estrella, 4 Wheat. 298, 308-311; La. Armistad Be 
Rues, 5 Wheat, 385, 390. 

It is insisted that these cases involve illegal captures 
at sea, or violations of neutral obligation, not arising 
because of the use of a port by sending in a captured 
vessel and keeping her there in violation of our rights as 
a neutral. But we are at a loss to see any difference in 
principle between such cases and breaches of neutrality 
of the character here involved in undertaking to make of 
an American port a depository of captured vessels with a 
view to keeping them there indefinitely. Nor can we 
consent to the insistence of counsel for appellant that 



164 INTERNATIONAL. LAW : DECISIONS AND NOTES. 

the prize court of the German Empire has exclusive 
jurisdiction to determine the fate of the Appam as lawful 
prize. The vessel was in an American port, and, under 
our practice, within the jurisdiction and possession of the 
district court, which had assumed to determine the 
alleged violation of neutral rights, with power to dispose 
of the vessel accordingly. The foreign tribunal, under 
such circumstances, could not oust the jurisdiction of the 
local court and therebj- defeat its judgment. (The 
Santissima Trinidad, supra, p. 355.) 

Were the rule otherwise than this court has frequently 
declared it to be, our ports might be filled, in case of a 
general war such as is now in progress between the 
European countries, with captured prizes of one or the 
other of the belligerents, in utter violation of the princi- 
ples of neutral obligation which have controlled this 
country from the beginning. 

The violation of American neutrality is the basis of 
jurisdiction, and the admiralty courts may order restitu- 
tion for a violation of such neutrality. In each case the 
jurisdiction and order rests upon the authority of the 
courts of the United States to make restitution to private 
owners for violations of neutrality where offending vessels 
are within our jurisdiction, thus vindicating our rights 
and obligations as a neutral people. 

It follows that the decree in each case must be affirmed. 



[1918] 

THE "HAKAN." 

[Privy Council.] 

ON APPEAL FROM THE PRIZE COURT, ENGLAND. 

October 16, 1917. 

[1918] A. C. 148. 

Appeal from a judgment of the president of the pro- 
bate, divorce, and admiralty division (in prize), deliv- 
ered on July 3, 1916. 55 

The appellants, a Swedish firm carrying on business 
at Gothenburg, were the owners of the steamship Hakan, 
which was condemned by a judgment of the president 
(Sir Samuel Evans) on the ground that she was 
captured while carrying a contraband cargo. 

The facts appear from the judgment of their lordships. 

<* [1916] P. 266. 



INTERNATIONAL LAW. DECISIONS AND NOTES. 165 

The learned president held that, apart from the pro- 
visions of article 40 of the declaration of London, 1909, 
the action and the views expressed by the chief maritime 
States before and since the international naval conference 
of 1908-9 justified the prize court in accepting as part 
of the law of nations the rule, stated in article 40, that 
"a vessel carrying contraband may be condemned if the 
contraband, reckoned either by value, weight, volume, 
or freight, forms more than half the cargo." He con- 
sidered that where the contraband being carried ex- 
ceeded the above stated proportion it was not necessary 
to prove knowledge on the part of the owner or master / 
that the goods in question were destined for the enemy. 
He held that the owner, or the master on his behalf, must 
be taken to know the nature and destination of the cargo. 
Upon the facts of the present case, however, he found 
that the ship having been chartered at a freight represent- 
ing 200 per cent per annum upon her capital or insurable 
value there could be no doubt that the owners knew 
that she was to be employed in the contraband trade 
between Scandinavia and German Baltic ports. The 
Hakan accordingly was condemned. 

October 16. The judgment of their lordships was ^ tatement of the 
delivered by Lord Parker, of Waddington. The Swedish 
steamship Hakan, the subject of this appeal, was cap- 
tured at sea by H. M. S. Nonsuch on April 4, 1916, having 
sailed the same day from Haugesund, in Norway, on a 
voyage to Lubeck, in Germany, with a cargo of salted 
herrings. Foodstuffs had as early as August 4, 1914, 
been declared to be conditional contraband. The writ 
in the present proceedings claimed condemnation of both 
ship and cargo, the former on the ground that it was 
carrying contraband goods and the latter on the ground 
that it consisted of contraband goods. 

It should be observed that the cargo, being on a neutral 
ship, was, even if it belonged to enemies, exempt from 
capture unless it consisted of contraband goods (see the 
declaration of Paris). 

The cargo owners did not appear or make any claim in 
the action, although, according to the usual practice of 
the prize court, even enemies may appear and be heard 
in defense of their rights under an international agree- 
ment. The question whether the goods were contraband 
was, however, fully argued by counsel for the owners of 
the ship, a Swedish firm carrying on business at Gothen- 



166 INTERNATIONAL, LAW! DECISIONS AND NOTES. 

burg. The president condemned the cargo as contra- 
band. He also condemned the ship for carrying con- 
traband. The owners of the ship have now appealed to 
His Majesty in council. Under these circumstances the 
first question to be decided is whether the cargo was rightly 
condemned as contraband, for if it was not there could 
be no case against the ship. 
coSt°raband!° nal ^ n their lordships' opinion, goods which are conditional 
contraband can be properly condemned whenever the 
court is of opinion, under all the circumstances brought 
to its knowledge, that they were probably intended to be 
applied for warlike purposes, the Jonge Margareiha™ 
enamy um $estSui- ^ ne ^ ac ^ a l° ne that the goods in question are on the way 
,10n * to an enemy base of naval or military equipment or 

supply would justify an inference as to their probable 
application for warlike purposes. But the character of 
the place of destination is not the only circumstance 
from which this inference can be drawn. All the known 
facts have to be taken into account. The fact that the 
goods are consigned to the enemy government, and not 
to a private individual, would be material. The 
same would be the case if, though the goods are con- 
signed to a private individual, such individual is in sub- 
stance or in fact the agent or representative of the 
enemy government. 

In the present case Lubeck, the port of destination of 
the goods, is undoubtedly a port used largely for the 
importation into Germany of goods from Norway and 
Sweden; but it does not appear whether it is used 
exclusively or at all as a base of naval or military equip- 
ment. On the other hand, it is quite certain that the 
persons to whom the goods were consigned at Lubeck 
were bound forthwith to hand them over to the Central 
Purchasing Co., of Berlin, a company appointed by the 
German Government to act under the direction of the 
imperial chancellor for purposes connected with the con- 
trol of the food supplies rendered necessary by the war. 
The proper inference seems to be that the goods in 
question are in effect goods requisitioned by the Govern- 
ment for the purposes of the war. It may be quite true 
that their ultimate application, had they escaped capture, 
would have been to feed civilians, and not the naval or 
military forces of Germany; but the general scarcity of 
food in Germany had made the victualing of the civil 

m 1 C. Rob. 189. 



INTERNATIONAL LAW : DECISIONS AND NOTES. 167 

population a war problem. Even if the military or naval 
forces of Germany are never supplied with salted herrings, 
their rations of bread or meat may well be increased by 
reason of the possibility of supplying salted herrings to 
the civil population. Under ^these circumstances, the 
inference is almost irresistible that the goods were 
intended to be applied for warlike purposes, and, this 
being so, their lordships are of opinion that the goods 
were rightly condemned. 

The second question their lordships have to determine 
relates to the condemnation of the ship for carrying the 
goods in question. It is, of course, quite clear that if 
article 40 of the declaration of London 57 be applicable, London* 
the ship was rightly condemned, inasmuch as the whole 
cargo was contraband. The declaration of London has, 
however, no validity as an international agreement. It 
was, it is true, provided by the order in council of Octo- 
ber 29, 1914, that during the present hostilities its pro- 
visions should, with certain very material modifications, 
be adopted and put in force. But the prize court can 
not, in deciding questions between His Majesty's Gov- 
ernment and neutrals, act upon this order except in so 
far as the declaration of London, as modified by the 
order, either embodies the international law or contains 
a waiver in favor of neutrals of the strict rights of the 

itS <— ' 

Crown. It is necessary, therefore, to consider the inter- 
national law with regard to the condemnation of a ship 
for carrying contraband apart from the declaration of 
London. 

It seems quite*clear that at one time in our history the 
mere fact that) a neutral ship was carrying contraband 
was considered to justify its condemnation, but this rule stowell » s opin . 
was subsequently modified. Lord Stowell deals with the l0n - 
matter in the Neutralitet: 58 "The modern rule of the law 
of nations is, certainly," he says, "that the ship shall not 
be subject to condemnation for carrying contraband arti- 
cles. The ancient practice was otherwise; and it can not 
be denied, that it was perfectly defensible on every prin- 
ciple of justice. If to supply the enemy with such articles 
is a noxious act with respect to the owner of the cargo, 
the vehicle which is instrumental in effecting that illegal 
purpose can not be innocent. The policy of modern times 

57 Art. 40: "A vessel carrying contraband may be condemned if tbe contraband, 
reckoned either by value, weight, volume, or freight, forms more than half the cargo." 
* (1801) 3 C. Rob. 295. 



168 INTERNATIONAL, LAW : DECISIONS AND NOTES. 

has, however, introduced a relaxation on this point; and 
the general rule now is, that the vessel does not become 
confiscable for that act. But this rule is liable to excep- 
tions — where a ship belongs to the owner of the cargo, 
or where the ship is going on such service, under a false 
destination or false papers; these circumstances of aggra- 
vation have been held to constitute excepted cases out 
of the modern rule, and to continue them under the 
ancient one." 

It is to be observed that Lord Stowell does not say 
that the particular cases he refers to are the only excep- 
tions to the modern rule. On the contrary, his actual 
decision in the Neutralitet 59 creates a third exception. It 
should be observed, too, that in a later part of his judg- 
ment he states the reason for the modification of the 
ancient rule to be the supposition that noxious or doubt- 
ful articles might be carried without the personal knowl- 
edge of the owner of the ship. He held in the case before 
him that this ground for the modification of the rule 
entirely failed, so that the ancient rule applied. The 
reasoning is sound. For if the ancient rule was modified 
because of the possible want of knowledge on the part of 
the shipowner, it is perfectly logical to treat actual knowl- 
edge on the part of the shipowner as a good ground for 
excepting any particular case from the modern rule. 
Knowledge will also explain the two main exceptions to 
which Lord Stowell refers. If the shipowner also owns 
the contraband cargo, he must have this knowledge; 
and if he sails under a false destination or with false 
papers, it is quite legitimate to infer this knowledge 
from his conduct. In his earlier decision in the Ring- 
ende Jacob 60 Lord Stowell had stated the modern rule 
to be that the carrying of contraband is attended 
only with loss of freight and expenses, except where 
the ship belongs to the owner of the contraband cargo 
or where the simple misconduct of carrying a con- 
traband cargo has been connected with other malignant 
and aggravating circumstances. If by malignant and 
aggravating circumstances Lord Stowell meant only cir- 
cumstances from which knowledge of the character of the 
cargo might be properly inferred, the rule thus stated 
does not differ from that laid down in the subsequent 
case of the Neutralitet. 59 But the words used have by 

w 3 C Rob. 295. «o (1798) 1 C. Rob. 89. 



INTERNATIONAL LAW! DECISIONS AND NOTES. 169 

some writers been taken as indicating that, in Lord Stow- 
ell's opinion, besides knowledge of the character of the 
cargo, there must be on the part of the shipowner some 
intention or conduct to which the epithets " malignant 
or aggravating" can be applied in a real as opposed to a 
rhetorical sense. Any such hypothesis seems, however, 
to vitiate the reasoning of Lord Stowell in the Neutrali- 
tet. 59 Sailing under a false destination or false papers 
may possibly be called malignant or aggravating. There 
is not only the knowledge of guilt, but an attempt to 
evade its consequences. But in the case of the shipowner 
who also owns the contraband on board his ship it is 
difficult to see where the malignancy or aggravation lies, 
if it be not in the knowledge of the character of the goods 
on board. If it be malignant or aggravating on the part 
of the owner of the goods to consign them to the enemy, 
it must be equally malignant and aggravating on the part 
of the shipowner knowingly to aid in the transaction. 

Nevertheless, it was this construction of Lord Stowell's 
words in the Ringende Jacob 6l rather than the reasoning 
on which his decision in the Neutralitet 62 case was based 
that was adopted by the Supreme Court of the United 
States in the case of the Bermuda.™ In that case Chase, chase's opinion. 
C. J., in delivering the opinion of the court, says as to 
the relaxation of the ancient rule: "It is founded on the 
presumption that the contraband shipment was made 
without the consent of the owner given in fraud of 
belligerent rights, or, at least, without intent on his 
part to take hostile part against the country of the 
captors; and it must be recognized and enforced in all 
cases where that presumtion is not repelled by proof. 
The rule, however, requires good faith on the part of the 
neutral, and does not protect the ship where good faith 
is wanting. * * * Mere consent to transportation 
of contraband will not always or usually be taken to be a 
violation of good faith. There must be circumstances 
of aggravation. The nature of the contraband articles 
and their importance to the belligerent, and the general 
features of the transaction, must be taken into considera- 
tion in determining whether the neutral owner intended 
or did not intend, by consenting to the transportation, 
to mix in the war." 



« 1 C Rob. 89. 62 3 c. Rob. 295. « (1865) 3 Wa u. 514) 555. 



170 



INTERNATIONAL LAW! DECISIONS AND NOTES. 



Passing from the English and American decisions to 
the views which were at the commencement of the present 
hostilities entertained by the prize courts or jurists of 
other nations, we find what at first sight appears to be 
considerable divergence of opinion. If, however, the 
true principle be that knowledge of the character of the 
cargo is a sufficient ground for depriving a shipowner of 
the benefit of the modern rule, this divergence is more 
apparent than real. It reduces itself to a difference of 
opinion as to the circumstances under which the knowl- 
edge may be inferred, and if it be remembered that 
knowledge on the part of the shipowner of the character 
of the cargo must be largely a matter of inference from a 
great variety of circumstances, such difference of opinion 
is readily intelligible. 

Dutch view. Keferring, for example, to the view entertained in 
Holland, their lordships find that, although the ship is 
prima facie confiscable if an important part of the 
cargo be contraband, proof that the master or the char- 
terers could not have known the real nature of the cargo 
will secure the ship's release. In other words, the pro- 
portion of the contraband to the whole cargo raises a 
presumption of knowledge which may be rebutted. 

Italian view. Again, according to the views held in Italy, the ship 
carrying contraband is liable to confiscation only where 
the owner was aware that his vessel was intended to be 
used for the carrying of contraband. Here knowledge 
is made the determining factor, the manner in which 
knowledge is to be proved or inferred being left to the 
general law. Again, according to the views entertained 
in Germany, a ship carrying contraband can only be 
confiscated if the owner or the charterer of the whole 
ship or the master knew or ought to have known that 
there was contraband on board, and if that contraband 
formed more than a quarter of the cargo. Here also 
knowledge is made the determining factor, though there 
is a concession to the neutral if the proportion of the 
contraband to the whole cargo be sufficiently small. 
Once more, in France the test of the right to confiscate 
is whether or not the contraband is three-fourths in 
value of the whole cargo. This view may be looked on 
as defining the circumstances in which an irrebuttable 
inference of knowledge arises. The views entertained in 
Russia and Japan are similarly explicable. In their 
lordships' opinion the principle underlying all these 



German view. 



French' view. 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 171 

views is the same. There can be no confiscation of the 
ship without knowledge on the part of the owner, or 
possibly of the charterer or master, of the nature of the 
cargo, but in some cases the inference as to knowledge 
arising from the extent to which the cargo is contraband 
can not be rebutted, while in others it can, and in some 
cases, even where there is the requisite knowledge, the 
contraband must bear a minimum proportion to the 
whole cargo. 

It follows that the views entertained by foreign nations 
point to knowledge of the character of the goods being 
alone sufficient for condemnation of a vessel for carrying 
contraband; in other words, they support the principle 
to be derived from the reasoning in the Neutralitet" 
rather than the principle which has been deduced from 
the dictum in the Ringende Jacob 65 and developed in 
the Bermuda.™ It should be observed that both West- 
lake and Hall agree that knowledge is alone sufficient to 
justify confiscation. (See Westlake, International Law 
(War), 2d ed., p. 291; Hall, International Law, 6th ed., 
p. 666.) 

Their lordships consider that in this state of the au- 
thorities they ought to hold that knowledge of the 
character of the goods on the part of the owner of the 
ship is sufficient to justify the condemnation of the ship — 
at any rate, where the goods in question constitute a 
substantial part of the whole cargo. 

In the light of what has been said as to the rule of Facts of case, 
international law their lordships will now proceed to con- 
sider the special facts of this case. The owners of the 
ship are a Swedish firm carrying on business at Gothen- 
burg. On January 8, 1916, they chartered the ship to 
a German firm of fish dealers for a period of six weeks 
from the time when the vessel was placed at charterers' 
disposal, with power for the charterers to prolong this 
period up to May 16, 1916. The voyages undertaken by 
the charterers were to be from Scandinavian to German 
Baltic ports. It must have been quite evident to the 
owners that the ship would be used for the importation 
of fish into Germany. They must also have known that 
foodstuffs were conditional contraband. It is almost 
inconceivable that they did not also know of the food 

w 3 C. Rob. 295. 65 1 C.Rob. 89. «« 3 Wall. 514. 

59650—24 12 



172 INTERNATIONAL LAW I DECISIONS AND NOTES. 

difficulties in Germany and of the manner in which the 
German Government had in effect requisitioned salted 
herrings to meet the exigencies of the war. They 
had an opportunity in the court below of establishing 
their want of knowledge if it existed, but they did not 
attempt to do so. The inference that they did in fact 
know that the vessel would be used for the purpose 
for which it was used is irresistible. If knowledge of the 
character of the goods be the true criterion as to conflsca- 
bility, the vessel was rightly condemned. 

Even on the hypothesis that something beyond mere 
knowledge of the character of the cargo is required, some- 
thing which may be called "malignant or aggravating" 
within the principles of the Ringende Jacob* 7 or the 
Bermuda 68 decisions, that something clearly exists in 
the present case. A shipowner who lets his ship on time 
charter to an enemy dealer in conditional contraband for 
the purposes of his trade at a time when the conditional 
contraband is vitally necessary to and has been requisi- 
tioned by the enemy government for the purpose of the 
war is, in their lordships' opinion, deliberately "taking 
hostile part against the country of the captors" and 
"mixing in the war" within the meaning of those ex- 
pressions as used by Chase C. J. in the Bermuda. 68 
Decision. i n their lordships' opinion, the appeal fails and should 

be dismissed with costs. 



THE " BONNA." 

ADMIRALTY. 

(In Prize.) 
February 14, 15, 19, 1918. 

[1918] P. 123. 

In this case, which governed a number of others, the 
procurator general, on behalf of the Crown, claimed the 
condemnation of 416 tons of coconut oil seized at Bristol 
on August 27, 1916, ex the Norwegian steamship Bonna. 

The claimants, the Nya Margarin A/B. Svea, of Kalmar, 
Sweden, claimed the release of the oil on the ground that 
it had been bought by them for the purpose of the manu- 
facture, in their own factory, of margarine for sale and 
consumption in Sweden. 

« 1 C Rob. 89. " 3 Wall. 514. 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 173 

The case is reported on the alternative question argued 
on behalf of the Crown that, assuming the claimants es- 
tablished that the oil was destined solely for the Swedish 
factory, it should be deemed to have an enemy destina- 
tion on the ground that it helped to form part of a reser- 
voir of edible fats part of which went to Germany, or 
that the margarine manufactured from it would, to the 
knowledge of the claimants, be consumed in Sweden in 
substitution for butter exported to Germany. On this 
latter point it appeared from an affidavit by the con- 
troller of the war trade statistical department that before 
the war Sweden exported about 76 per cent of her sur- 
plus butter to the United Kingdom and Denmark, and 
that the quantity exported to Germany was 2.3 percent. 
After the outbreak of war the export to the United 
Kingdom, and in a lesser degree to Denmark, decreased, 
until by June, 1916, it had dwindled to less than 0.4 per 
cent, while Germany was receiving 98 per cent of the 
total export. During the second half of 1916 large quan- 
tities of edible fats and oils suitable for margarine manu- 
facture were seized as prize, w T ith the result that, whereas 
in July, 1916, 1,716 tons of butter were exported, 1,701 
of which went to Germany, in December, 1916, less than 
1 ton was exported, and from January to October, 1917, 
only l\ tons were exported to Germany. 

February 19. The President (Sir Samuel Evans) read 
the following judgment: This claim relates to 416 tons 
of coconut oil shipped on the Norwegian steamship 
Bonna, and seized on August 27, 1916. 

The claimants are a Swedish company of margarine statement of 

r J . ° the case. 

manuiacturers and dealers carrying on business at Kal- 
mar. The company was formed before the war, but its 
business increased largely after the war. Coconut oil 
was declared conditional contraband by an order in 
council of October 14, 1915. 

The case for the claimants was that the oil was their 
property, and was bought for the purpose of the manu- 
facture of margarine in their own factory for sale and 
consumption in Sweden, and as such was not subject to 
capture or condemnation. 

It was contended for the Crown that the claimants had 
failed to discharge the onus which, in the circumstances, 
rested upon them, to establish that the destination of 
the oil was neutral; and, further, that the oil was subject Neutral <ie*ti- 

.. . J nation 

to condemnation on the ground either (1) that it, and 



nation. 



174 INTERNATIONAL LAW! DECISIONS AND NOTES. 

the margarine for the manufacture of which it was 
acquired, should, in the circumstances, be deemed to 
have an enemy destination; or (2) that such margarine, 
when manufactured, would to the knowledge of the 
claimants be consumed in Sweden in subsitution for 
Swedish butter to be supplied to Germany. 

Of the total of 416 tons, 111 tons were shipped at 
Batavia and Sourabaya, in the Dutch East Indies, by 
G. H. Slot & Co. as consignors to Auguste Pellerin, Fils 
& Co. as consignees at Christiania; and 305 tons at 
Sourabaya by Burns, Philps & Co. as consignors to 
Anders Mellgren as consignee at Gothenburg. All the 
consignments were intended for the claimant company, 
which had bought the former lot through A. B. Nielsen 
& Co., of Christiania, and the latter through one Ole Boe, 
of the same city. The goods were sold and bought 
under f. o. b. contracts. 

It was said that the first-named consignees, Auguste 
Pellerin, Fils & Co., were inserted in some of the bills 
of lading through a mistake of the shippers, which was 
not discovered till after the vessel sailed. While she 
was on her voyage the shippers caused a cablegram to be 
transmitted to her master asking him to alter the mani- 
fest by entering the name of Anders Mellgren as the 
consignee. This he did not do; but he pinned the cable- 
gram to the manifest. Whether it was intended that 
he should alter the bills of lading or not is in doubt. 

Anders Mellgren was the French consul at Gothenburg. 
he had no control over, or beneficial interest in, the goods. 
His name was used as consignee with his assent, accorded 
for a small commission. The object of this was, accord- 
ing to the claimants' story, to facilitate the passage of 
the goods into Sweden by satisfying any British cruiser 
or examining vessel that the destination of the goods 
was neutral, and so to avoid the diverting of the vessel 
and her cargo to a British port for search and examina- 
tion. 

How the alleged mistake of inserting Auguste Pellerin, 
Fils & Co. in some of the bills of lading arose has not been 
shown as clearly as could be wished. But however that 
occurred, and whatever the object of consigning the goods 
to Mellgren may have been, the result was that the ship's 
papers did not show who were the real consignees for 
whom the goods were destined. This clearly placed 
upon the claimants the burden of proving that the goods 



INTERNATIONAL LAW : DECISIONS AND NOTES. 175 

did not have an enemy destination. Other matters 
arising upon the documents also required explanation; 
but I refrain from entering upon them, as that may be 
unnecessary in view of the decision to be pronounce ;i 
upon the claim to the release of the goods. 

As to the ownership and destination of the goods, 
having regard to all the circumstances (which need not 
be detailed), I have come to the conclusion that the oil 
was the property of the claimants, and was bought, and 
intended to be used, by them in their own factory in the 
manufacture of margarine; and that such margarine was 
intended for consumption in Sweden. 

Apart from these questions of fact, counsel for the 
Crown rested their case upon a broader ground. Statistics 
were given in evidence to show the increase of the importa- 
tion into Sweden of raw materials for margarine and of Raw mateiia ^ 
the production and sale of margarine, and to show the 
simultaneous increase of the export of butter from Sweden 
to Germany. They were interesting, and beyond doubt 
they proved that the more margarine was made for the 
Swedes the more butter was supplied by them to the 
Germans; and that when by reason of the naval activity 
of this country the imports for margarine production 
became diminished, the Swedish butter was kept for 
consumption within Sweden itself and ceased to be sent 
to the enemy. 

Upon these facts counsel for the Crown formulated and conditi onai 
founded their legal proposition. That proposition may 
be translated in practical terms, in relation to the facts 
of this case, perhaps more usefully than if it were stated 
in abstract language. So translated it may be stated 
thus: " Margarine and butter are of the same class of 
food, one being used as a substitute for, or even as an 
equivalent of, the other. Margarine was produced in 
Sweden — by the claimants among others — with the 
result that, to the knowledge of the manufacturers, the 
butter of the country was being sent to Germany, where 
it would pass under the control of the Government. 
There was, so to speak, one reservoir of the edible fats, 
butter and margerine. As one part of the contents — 
the butter — was conveyed away for consumption in 
Germany, the other part— margarine — was sent in to 
take its place for consumption in Sweden. If the one 
part could be captured as conditional contraband, the 
other part was subject to capture also; and not only that 



176 INTERNATIONAL LAW I DECISIONS AND NOTES. 

part when completely manufactured, but the raw 
materials for it as well." 

No authority was, or could be, adduced for the proposi- 
tion formulated in such an argument; but it was con- 
tended, nevertheless, that it logically followed principles 
recognized by international law. 
voyag°. tinuous Before pronouncing the decision of the court I think it 
right to say that, if it were established that raw materials 
were imported by a neutral for the manufacture of mar- 
garine with an intention to supply the enemy with the 
manufactured article, I should be prepared to hold that 
the doctrine of continous voyage applied so as to make 
such raw materials subject to condemnation as con- 
ditional contraband with an enemy destination. 

I should go even further and hold that, if it were shown 
that in a neutral country particular manufacturers of 
margarine were acting in combination with particular 
producers or vendors of butter, and that the intention 
and object of their combination was to produce the 
margarine in order to send the butter to the enemy, the 
same doctrine would be applicable with the same results. 

But there is a long space between those two supposed 
cases and the one now before the court; and this space, 
in my view, can not be spanned by the application of 
the accepted principles of the law of nations, 
rawmateriais. ° f ^ do n °t consider that it would be in accordance with 
international law to hold that raw materials on their 
way to citizens of a neutral country to be converted into 
a manufactured article for consumption in that country 
were subject to condemnation on the ground that the 
consequence might, or even would, necessarily be that 
another article of a like kind, and adapted for a like 
use, would be exported by other citizens of the neutral 
country to the enemy. 
Decision. j therefore allow the claim, and order that the goods 

seized, or the proceeds if sold, be released to the claimants. 



THE "STIGSTAD." 

[Privy Council.] 
ON APPEAL FROM THE PRIZE COURT, ENGLAND. 

December 16, 1918. 

[1918] A. C. 279. 

Appeal from a judgment of the president of the admi- 
ralty division (in prize). 69 

<» [1916 ]P. 123. 



the case. 



INTERNATIONAL LAW I DECISIONS AND NOTES. 177 

The appellants, managers of the Norwegian steamship 
Stigstad, claimed in the prize court for freight, damages 
for detention of the ship, and expenses. The ship had 
been required to discharge her cargo at Middlesbrough, 
under the provision of an order in council of March 11, 
1915. The facts appear from the judgment of their 
lordships. 

The president, Sir Samuel Evans, upon the claim of the 
Norwegian cargo owners coming before the court, had 
ordered that the appellants should receive out of the 
proceeds of the cargo a sum for freight to be agreed, or 
in default of agreement to be determined by the registrar 
in accordance with the principles laid down in the Juno. 70 
The president, by a judgment delivered on April 14, held 
that the order in council was valid, and that the appellants 
were not entitled to the further compensation which they 
claimed. 

The material terms of the order in council appear from A statement of 

•* *• t.no rasa 

the report of the proceedings before the president. 

December 16. The judgment of their lordships was 
delivered by Lord Sumner. The appellants in this case 
were claimants below. They are a Norwegian company 
which manages the steamship Stigstad for her owners, 
the Klaveness Dampskibsaktieselskab, a Norwegian 
corporation. While on a voyage, begun on April 10, 
1915, from Kirkenes, Sydvaranger, in Norway, to Rot- 
terdam with iron-ore briquettes, the property of neutrals, 
she was stopped in latitude 56° 9' N. and longitude 6° 6' 
E. about a day's sail from Rotterdam by H. M. S. Incon- 
stant, and was ordered to Leith and thence to Mid- 
dlesbrough to discharge. Their claim was for " (1) 
freight, (2) detention, and (3) expenses consequent upon" 
this seizure and the discharge at Middleb rough afterwards. 
The detention was measured by the number of days which 
elapsed between the expected date of completing dis- 
charge at Rotterdam and the actual date of completing 
discharge at Middlesbrough, calculated at the chartered 
rate for detention, viz, 1301. per day; and as to the 
expenses, while willing to treat port dues and expenses 
at Middlesbrough as the equivalent of those which would 
have been incurred at Rotterdam, the owners claimed 
some port dues and expenses at Leith and a few guineas for 
special agency expenses at Middlesbrough. Eventually 

™ [1916] P. 109. 



178 INTERNATIONAL LAW : DECISIONS AND NOTES. 

the cargo was sold by consent, and a sum, the amount of 
which was agreed between the parties, was ordered to be 
paid out of the proceeds to the claimants for freight; but 
the president, Sir Samuel Evans, dismissed the claims 
for detention and for the special expenses. It is against 
his decree that the claimants have now appealed. They 
have admitted throughout that, in fact, the cargo of iron- 
ore briquettes was to be discharged into Rhine barges at 
Rotterdam in order to be conveyed into Germany. 

The cargo was shipped by the Aktieselskabet Sydvaran- 

ger of Kirkenes, and was to be delivered to V. V. W. Van 

Drich, Stoomboot en Transport Ondernemingen, both 

neutrals, but it is contended that section 3 of the order 

order in coun- in council, dated March 11, 1915, warranted interference 

cil March 11, 1915. . J . ' ; 

with the ship and her cargo by His Majesty's navy on the 
voyage to Rotterdam. The president's directions as to 
freight were that " the fair freight must be paid to them, 
having regard to the work which they did," the principle 
which he had laid down in the Juno 70 being, in his opin- 
on, applicable. The claim for detention is, in truth, a 
claim for damages for interfering with the completion 
of the chartered voyage, for it is admitted that delivery 
was taken at Middlesbrough with reasonable dispatch. 
That part of the claim which relates to the ship 'a being 
ordered to call at Leith and the claim for expenses in- 
curred there are claims for damages for putting in force 
the above-named order in council, for it is not suggested 
that the order to call at Leith, and thence to proceed to 
Middlesbrough, was in itself an unreasonable way of 
exercising the powers given by the order. The small 
claim for fees at Middlesbrough seems to relate to an 
outlay incident to the earning of the freight which has 
been paid, and was covered by it; but, if it is anything 
else, it also is a claim for damages of the same kind. 
" Damages" is the word used by the president in his 
Damages* judgment; and, although it was avoided and deprecated in 
argument before their lordships, there can be no doubt 
that it, and no other, is the right word to describe the 
nature of the claims under appeal. 

It is impossible to find in the express words of the order 
any language which directs that such damages should be 
allowed, nor are the principles applicable which have 
been followed in the Anna Catharina n and elsewhere, as 

w [1916] P. 169. 71 6 C. Rob. 10. 



INTERNATIONAL, LAW I DECISIONS AND NOTES. 179 

to allowance of freight and expenses to neutral ships, 
whatever be the exact scope and application of those 
cases. Again, with the fullest recognition of the rights 
of neutral ships, it is impossible to say that owners of 
such ships can claim damages from a belligerent for put- 
ting into force such an order in council as that of March rig ^ tral trading 
11, 1915, if the order be valid. The neutral exercising 
his trading rights on the high seas and the belligerent 
exercising on the high seas rights given him by order in 
council or equivalent procedure, are each in the enjoy- 
ment and exercise of equal rights; and, without an express 
provision in the order to that effect, the belligerent does 
not exercise his rights subject to any overriding right in 
the neutral. The claimants' real contention is, and is 
only, that the order in council is contrary to interna- 
tional law, and is invalid. 

Upon this subject two passages in the Zamora 72 are 
in point. The first is at page 95, and relates to Sir Wil- 
liam Scott's decision in the Fox. 73 "The decision 
proceeded upon the principle that, where there is just 
cause for retaliation, neutrals may by the law of nations 
be required to submit to inconvenience from the act of 
a belligerent power greater in degree than would be 
justified had no just cause for retaliation arisen, a prin- 
ciple which had been already laid down in the Lucy J 1 74 R»P risa1 *- 

Further, at page 98, are the words " An order authoriz- 
ing reprisals will be conclusive as to the facts which are 
recited as showing that a case for reprisals exists, and 
will have due weight as showing what, in the opinion of 
His Majesty's advisers, are the best or only means of 
meeting the emergency; but this will not preclude the right 
of any party aggrieved to contend, or the right of the court 
to hold, that these means are unlawful, as entailing on 
neutrals a degree of inconvenience unreasonable, consid- 
ering all the circumstances of the case." 

It is true that in the Zamora 75 the validity of a retalia- 
tory order in council was not directly in question, but 
these passages were carefully considered and advisedly 
introduced as cogent illustrations of the principle, which 
was the matter then in hand. Without ascribing to 
them the binding force of a prior decision on the same 

» [1916] 2 A. C. 77, 95, 98. " Edw. 311. 7 * (1809) Edw. 122. « [1916] 2 A. C 77. 



180 INTERNATIONAL LAW I DECISIONS AND NOTES. 

point, their lordships must attach to them the greatest 
weight and, before thinking it right to depart from them, 
or even necessary to criticize them at any great length, 
they would at least expect it to be shown either that there 
are authoritative decisions to the contrary, or that they 
conflict with general principles of prize law or with the 
rules of common right in international affairs. 

What is here in question is not the right of the belliger- 
ent to retaliate upon his enemy the same measure as has 
been meted out to him, or the propriety of justifying in 
one belligerent some departure from the regular rules of 
war on the ground of necessity arising from prior departure 
on the part of the other, but it is the claim of neutrals to 
be saved harmless under such circumstances from incon- 
venience or damage thereout arising. If the statement 
above quoted from the Zamora be correct, the recitals in 
the order in council sufficiently establish the existence of 
such breaches of law on the part of the German Govern- 
ment as justify retaliatory measures on the part of His 
Majesty, and, if so, the only question open to the neutral 
claimant for the purpose of invalidating the order is 
whether or not it subjects neutrals to more inconven- 
ience or prejudice than is reasonably necessary under the 
circumstances. 

Their lordships think that such a rule is sound, and 
indeed inevitable. From the nature of the case the party 
who knows best whether or not there has been miscon- 
duct calling such a principle into operation, is a party 
who is not before the court, namely, the enemy himself. 
The neutral claimant can hardly have much information 
about it, and certainly can not be expected to prove or 
disprove it. His Majesty's Government, also well 
aware of the facts, has already, by the fact as well as by 
the recitals of the order in council, solemnly declared the 
substance and effect of that knowledge, and an inde- 
pendent inquiry into the course of contemporary events, 
both naval and military, is one which a court of prize is 
but ill-qualified to undertake for itself. Still less would 
it be proper for such a court to inquire into the reasons of 
reSfatoS^meS- P onc Jj military or other, which have been the cause and 
ures - are to be the justification for resorting to retaliation for 

that misconduct. Its function is, in protection of the 
rights of neutrals, to weigh on a proper occasion the 
measures of retaliation which have been adopted in fact, 
and to inquire whether they are in their nature or extent 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 181 

other than commensurate with the prior wrong done, 
and whether they inflict on neutrals, when they are looked 
at as a whole, inconvenience greater than is reasonable 
under all the circumstances. It follows that a court of f 
prize, while bound to ascertain, from the terms of the 
order itself, the origin and the occasion of the relatiatory 
measures for the purpose of weighing those measures with 
justice as they affect neutrals, nevertheless ought not to 
question, still less to dispute, that the warrant for passing 
the order, which is set out in its recitals, has in truth 
arisen in the manner therein stated. Although the scope 
of this inquiry is thus limited in law, in fact their lord- 
ships can not be blind to what is notorious to all the world 
and is in the recollection of all men, the outrage, namely, 
committed by the enemy, upon law, humanity, and the 
rights, alike of belligerents and neutrals, which led to, 
and indeed compelled, the adoption of some such policy 
as is embodied in this order in council. In considering 
whether more inconvenience is inflicted upon neutrals 
than the circumstances involve, the frequency and the 
enormity of the original wrongs are alike material, for 
the more gross and universal those wrongs are, the more 
are all nations concerned in their repression, and bound 
for their part to submit to such sacrifices as that repres- 
sion involves. It is right to recall that, as neutral com- 
merce suffered and was doomed to suffer gross prejudice 
from the illegal policy proclaimed and acted on by the 
German Government, so it profited by, and obtained re- 
lief from, retaliatory measures, if effective to restrain, to 
punish and to bring to an end such injurious conduct. 
Neutrals, whose principles or policy lead them to refrain 
from punitory or repressive action of their own, may well 
be called on to bear a passive part in the necessary sup- 
pression of courses which are fatal to the freedom of all 
who use the seas. 

The argument principally urged at the bar ignored 
these considerations, and assumed an absolute right in 
neutral trade to proceed without interference or restric- 
tion, unless by the application of the rules heretofore 
established as to contraband traffic, unneutral service, 
and blockade. The assumption was that a neutral, too 
pacific or too impotent to resent the aggressions and law- 
lessness of one belligerent, can require the other to refrain 
from his most effective, or his only, defense against it, 
by the assertion of an absolute inviolability for his own 



182 INTERNATIONAL, LAW : DECISIONS AND NOTES. 

neutral trade, which would thereby become engaged in a 
passive complicity with the original offender. For this 
contention no authority at all was forthcoming. Refer- 

cii?]so6-i8i2° un " ence was made t0 tne orders in council of 1806 to 1812, 
which were framed by way of retaliation for the Berlin 
and Milan decrees. There had been much discussion of 
these celebrated instruments on one side or the other, 
though singularly little in decided cases or in treatises of 
repute; and, according to their nationality or their par- 
tisanship, writers have denounced the one policy or the 
other, or have asserted their own superiority by an impar- 
tial censure of both. The present order, however, does 
not involve for its justification a defense of the very 
terms of those orders in council. It must be judged on 
its merits and, if the principle is advanced against it 
that such retaliation is wrong in kind, no foundation in 
authority has been found on which to rest it. Nor is the 
principle itself sound. The seas are the highway of all, 
and it is incidental to the very nature of maritime war 
that neutrals, in using that highway, may suffer incon- 
venience from the exercise of their concurrent rights by 
Blockade. those who have to wage war upon it. Of this fundamental 
fact the right of blockade is only an example. It is true 
that contraband, blockade, and unneutral service are 
branches of international law which have their own his- 
tory, their own illustrations, and their own development. 
Their growth has been unsystematic, and the assertion of 
right under these different heads has not been closely 
connected or simultaneous. Nevertheless, it would be 
illogical to regard them as being in themselves discon- 
nected topics or as being the subject of rights and lia- 
bilities which have no common connection. They may 
also be treated, as in fact they are, as illustrations of the 
broad rule that belligerency and neutrality are states so 
related to one another that the latter must accept some 
abatement of the full benefits of peace in order that the 
former may not be thwarted in war in the assertion and 
defense of what is the most precious of all the rights of 
nations, the right to security and independence. The 
categories of such cases are not closed. To deny to the 
belligerent under the head of retaliation any right to 
interfere with the trade of neutrals beyond that which, 
quite apart from circumstances which warrant retaliation, 
he enjoys already under the heads of contraband, block- 
ade, and unneutral service, would be to take away with 



INTERNATIONAL UW: DECISIONS AND NOTES. 183 

one hand what has formally been conceded with the other. 
As between belligerents acts of retaliation are either the 
return of blow for blow in the course of combat, or are 
questions of the laws of war not immediately falling under 
the cognizance of a court of prize. Little of this subject 
is left to prize law beyond its effect on neutrals and on the 
rights of belligerents against neutrals, and to say that 
retaliation is invalid as against neutrals, except within 
the old limits of blockade, contraband, and unneutral 
service, is to reduce retaliation to a mere simulacrum, 
the title of an admitted right without practical application 
or effect. 

Apart from the Zamora, the decided cases on this sub- 
ject, if not many, are at least not ambiguous. Of the 
Leonora 76 , decided on the later order in council, their 
lordships say nothing now, since they are informed that 
it is under appeal to their lordships' board, and they 
desire on the present occasion to say no more, which 
might affect the determination of that case, than is indis- 
pensable to the disposal of the present one. 

Sir William Scott's decisions on the retaliatory orders Scott's <ieci- 

J sions. 

in council were many, and many of them were affirmed 
on appeal. He repeatedly, and in reasoned terms, de- 
clared the nature of the right of retaliation and its entire 
consistency with the principles of international law. 
Since then discussion has turned on the measures by which 
effect was then given to that right, not on the founda- 
tion of the principle itself, and their lordships regard 
it as being now too firmly established to be open to 
doubt. 

Turning to the question which was little argued, if at Excessive hard - 
all, though it is the real question in the case, whether commerce, 
the order in council of March 11, 1915, inflicts hardship 
excessive either in kind or in degree upon neutral com- 
merce, their lordships think that no such hardship was 
shown. It might well be said that neutral commerce 
under this order is treated with all practicable tender- 
ness, but it is enough to negative the contention that 
there is avoidable hardship. Of the later order in coun- 
cil they say nothing now. If the neutral shipowner is 
paid a proper price for the service rendered by his 
ship, and the neutral cargo-owner a proper price accord- 
ing to the value of his goods, substantial cause of com- 
plaint can only arise if considerations are put forward 

7 « [1918] P. 182. 



184 



INTERNATIONAL, LAW! DECISIONS AND NOTES. 



which go beyond the ordinary motives of commerce and 
partake of a political character, from a desire either to 
embarrass the one belligerent or to support the other. 
In the present case the agreement of the parties as to the 
amount to be allowed for freight disposes of all ques- 
tion as to the claimants' rights to compensation for mere 
inconvenience caused by enforcing the order in council. 
Presumably that sum took into account the actual course 
and duration of the voyage and constituted a proper 
recompense alike for carrying and for discharging the 
cargo under the actual circumstances of that service. 

charter party. The further claims are in the nature of claims for dam- 
ages for unlawful interference with the performance of the 
Rotterdam charter party. They can be maintained only 
by supposing that a wrong was done to the claimants, 
because they were prevented from performing it, for in 
their nature these claims assume that the shipowners 
are to be put in the same position as if they had com- 
pleted the voyage under that contract, and are not merely 
to be remunerated on proper terms for the performance 
of the voyage, which was in fact accomplished. In other 
words, they are a claim for damages, as for wrong done 
by the mere fact of putting in force the order in council. 

Decision. Such a claim can not be sustained. Their lordships will 
humbly advise His Majesty that the appeal should be 
dismissed with costs. 



THE "LEONORA." 

[Privy Council.] 
ON APPEAL FROM THE PRIZE COURT, ENGLAND. 

July 31, 1919. 

[1919] A. C. 974. 

Appeals from decrees of the admiralty division (in 
prize) dated April 18, 1918. 77 

The appellants in the two appeals were respectively 
the owners of the Dutch steamship Leonora and the 
owners of a cargo of coal which she was carrying when 
captured. The ship and cargo were seized and con- 
demned under an order in council of February 16, 1917, 
known as the second retaliatory order. The facts 
appear from the judgment of their lordships. The order 

" [1918] T. 182. 



INTER NATIONAL LAW I DECISIONS AND NOTES. 185 

in council is fully set out in the report of the hearing 
before the president. 

Jul}' 31. The judgment of their lordships was delivered t ^^ mt of 
by Lord Sumner. The Leonora, a Dutch steamship bound 
from Rotterdam to Stockholm direct, was stopped on 
August 16, 1917, by His Majesty's tropedo boat F77, 
outside territorial waters, and shortly after passing 
Ymuiden. She was taken into Harwich. Her cargo, 
which was neutral owned, consisted of coal, the produce 
of collieries in Belgium. It was not intended that she 
should call at any British or allied port, nor had any 
application been made on her behalf for the appointment 
of a British port for the examination of her cargo. Both 
ship and cargo were condemned, pursuant to the order 
in council, dated February 16, 1917, and both the ship- 
owners and the cargo owners appeal. 

Their lordships are satisfied that the cargo was "of 
enemy origin" within the meaning of paragraphs 2 and 3 Enem y ori s in - 
of that order. The term had been used in the order of 
March 11, 1915, paragraph 4, and, owing to doubts as to 
the effect of the word "enemy" therein, a further order 
was made on January 10, 1917, which applied the term cil °^ I r s j° c g™" 
"enemy origin," as used in that paragraph, to goods Feb - 16 > 1917 - 
"originating in any enemy country." In the present 
case, the question is one of the interpretation of the third 
order, that of February 16, 1917, which, beyond saying 
that it is supplemental to the above-mentioned orders, 
makes no further express reference to them, but from the 
recital as to the recent proceedings of the German Govern- 
ment, it is plain that the order of 1917 dealt with a wider 
mischief and was intended to have a wider scope than the 
previous order. It is therefore necessary to have regard 
to the system of exploitation then in force in Belgium for 
the advancement of German interests, in order to ap- 
preciate the full effect of the words "enemy origin." It 
is not necessary to inquire whether, within the terms of 
the order, a Belgian origin could, as such, be regarded as 
an "enemy" origin for this purpose, or what the effect, 
if any, of the German occupation might be on the view 
to be taken of the nationality of persons resident in 
Belgium. The collieries from which this coal came were 
included in the German "Kohlenzentrale," a system by 
which the coal production of Belgium was strictly con- 
trolled and was compulsorily manipulated, with the 
object of supporting German exchange and assisting 



186 INTERNATIONAL, LAW I DECISIONS AND NOTES. 

mSciS an tranS- German commercial transactions with neutral countries, 
tions. especially Holland and Sweden. In particular, the 

export of Belgian coal to Sweden was encouraged, be- 
cause it assisted to procure a reciprocal importation of 
ore from Sweden. The actual sale of this very cargo 
was arranged in Cologne by an official of the Kohlenzen- 
trale in his own name, nor is it proved that he was, in 
fact, selling on behalf of some undisclosed principal, 
either in Belgium or elsewhere. Payment for it was made 
by lodging Swedish kroner in a Stockholm bank to the 
credit of the Kohlenzentrale. It is stated in the German 
regulations that "the amount realized by the sale will 
be paid to the vendors, " whoever they may have been. 
Perhaps this may have been so; for if no money at all 
reached the colliery, presumably the getting of coal there 
would come to an end; but whatever crumbs may have 
been allowed to fall from the masters' table, the fact is 
clear that these coals were won, sold, and shipped as 
part of a German Government trade, carried on for the 
benefit of the enemy in prosecuting the war. To deny 
to them the term "of enemy origin," as used in this order, 
would be pedantic. The order is devised to give effect 
to a scheme of retaliation, which will compel the enemy 
to desist from outrageous conduct, by crippling or 
preventing trade in goods which in a broad, but very 
real, sense he made his own. It does not employ this 
expression "of enemy origin" as a mere geographical 
term, nor as merely descriptive of the nationality of the 
original owners of the coal, who were involuntary, and 
probably reluctant, victims of the German system. 
Upon this point the view of their lordships is that the 
learned president's conclusion was right. 

The appellants' main case was that the order in council 
was invalid, principally on the ground that it pressed so 
hardly on neutral merchants and interfered so much with 
their rights that, as against them, it could not be held to 
Reprisals. fall within such right of reprisal as a belligerent enjoys 
under the law of nations. A subordinate part of their 
argument was that in its application to the Leonora the 
order was bad, because no British port had been ap- 
pointed at which she would call for the examination of 
her cargo. In so far as this circumstance forms part of 
Hardship to the general hardship to neutrals it will be dealt with 

neutrals. & r 

presently. As a separate point their lordships think that 
it fails, for the language of the order in council does not 



INTERNATIONAL, LAW I DECISIONS AND NOTES. 187 

constitute the appointment of some British port for ex-^* of exami * 
amination of the cargoes, either of this ship or of ships 
in general, a condition precedent to the application of 
the order. The proviso relieving vessels which call at 
an appointed port operates not as a prescription of the 
circumstances under which alone such application is ad- 
missible, but merely as a mode of mitigating the strin- 
gency of the order. The evidence discloses no reason 
why the appointment of a convenient port should not 
have been applied for to facilitate the Leonora's voyage, 
and a difficulty can not be relied on as a circumstance of 
excessive inconvenience to neutrals, which it was in their 
power to remove by such simple means. 

Upon the validity of the order in council itself the ap- 
pellants advanced a twofold argument. The major prop- 
osition was that the order purported to create an offense, 
namely, failure to call at a British or allied port, which 
is unknown to the law of nations, and to impose punish- 
ment upon neutrals for committing it; in both respects it 
was said that the order is incompetent. The minor 
proposition was that the belligerent's right to take meas- 
ures of retaliation, such as it is, must be limited, as 
against neutrals, by the condition that the exercise of 
that right must not inflict on neutrals an undue or dis- 
proportionate degree of inconvenience. In the present 
case various circumstances of inconvenience were relied 
on, notably the perils of crossing the North Sea to a 
British port of call and the fact that no particular port 
of call in Great Britain had been appointed for the vessel 
to proceed to. 

In the Stigstad 78 their lordships had occasion to con- 
sider and to decide some at least of the principles upon 
which the exercise of the right of retaliation rests, and 
by those principles they are bound. In the present case, 
nevertheless, they have had the advantage of counsel's 
full reexamination of the whole subject, and full citation 
of the authorities, and of a judgment by the president in 
the prize court, which is itself a monument of research. 
The case furthermore has been presented under circum- 
stances as favorable to neutrals as possible, for the dif- 
ference in the stringency of the two orders in council, 
that of 1915 and that of 1917, is marked, since in the 



« [1919] A. C 279. 

50650—24 13 



188 INTERNATIONAL, LAW I DECISIONS AND NOTES. 

case of the later order the consequences of disregarding 
it have been increased in gravity and the burden imposed 
on neutrals has become more weighty. If policy or sym- 
pathy can be invoked in any case they could be and 
were invoked here. 

Their lordships, however, after a careful review of their 
opinion in the Stigstad, think that they have neither 
ground to modify, still less to doubt, that opinion, even 
if it were open to them to do so, nor is there any oc- 
casion in the present case to embark on a general re- 
statement of the doctrine or a minute reexamination of 
the authorities. 

right's! 1 igerent There are certain rights, which a belligerent enjoys by 
the law of nations in virtue of belligerency, which may be 
enforced even against neutral subjects and to the prej- 
udice of their perfect freedom of action, and this because 
without those rights maritime war would be frustrated 
and the appeal to the arbitrament of arms be made of 
none effect. Such for example are the rights of visit and 
search, the right of blockade and the right of preventing 
traffic in contraband of war. In some cases a part of 
the mode in which the right is exercised consists of some 
solemn act of proclamation on the part of the belligerent, 
by which notice is given to all the world of the enforce- 
ment of these rights and of the limits set to their exercise. 
Such is the proclamation of a blockade and the notifica- 
tion of a list of contraband. In these cases the belligerent 
sovereign does not create a new offense motu proprio ; he 
does not, so to speak, legislate or create a new rule of 
law; he elects to exercise his legal rights and puts them 
into execution in accordance with the prescriptions of the 
existing law. Nor again in such cases does the retaliating 

court ce of a pr* 2 ® belligerent invest a court of prize with a new jurisdiction 
or make the court his mandatory to punish a new offense. 
The office of a court of prize is to provide a formal and 
regular sanction for the law of nations applicable to mari- 
time warfare, both between belligerent and belligerent 
and between belligerent and neutral. Whether the law 
in question is brought into operation by the act of both 
belligerents in resorting to war, as is the case with the 
rules of international law as to hostilities in general, or by 
the assertion of a particular right arising out of a particu- 
lar provocation in the course of the war on the part of 
one of them, it is equally the duty of a court of prize, by 
virtue of its general jurisdiction as such, to provide for 



INTERNATIONAL LAW : DECISIONS AND NOTES. 189 

the regular enforcement of that right, when lawfully 
asserted before it, and not to leave that enforcement to 
the mere jurisdiction of the sword. Disregard of a valid 
measure of retaliation is as against neutrals just as justi- 
ciable in a court of prize as is breach of blockade or the 
carriage of contraband of war. The jurisdiction of a 
court of prize is at least as essential in the neutral's 
interest as in the interest of the belligerent, and if the 
court is to have power to release in the interest of the one, 
it must also have inherent power to condemn in justice 
to the other. Capture and condemnation are the pre- 
scriptive and established modes by which the law of nations 
as applicable to maritime warfare is enforced. Statutes 
and international conventions mav invest the court with 
other powers or prescribe other modes of enforcing the 
law, and the belligerent sovereign may in the appropriate 
form waive part of his rights and disclaim condemnation 
in favor of some milder sanction, such as detention. In 
the terms of the present order, which says that a vessel ^25? j u £d con- 
(par.2) shall be "liable to capture and condemnation" demnation - 
and that goods (par.3 ) shall be "liable to condemnation," 
some argument has been found for the appellants' main 
proposition, that the order in council creates an offense 
and attaches this penalty, but their lordships do not 
accept this view. The order declares, by way of warning 
and for the sake of completeness, the consequences which 
may follow from disregard of it; but, if the occasion has 
given rise to the right to retaliate, if the belligerent has 
validly availed himself of the occasion, and if the vessel 
has been encountered at sea under the circumstances 
mentioned, the right and duty to bring the ship and cargo 
before a court of prize, as for a justiciable offense against 
the right of the belligerent, has arisen thereupon, and the 
jurisdiction to condemn is that which is inherent in the 
court. That a rebuttable presumption is to be deemed 
to arise under paragraph 1, and that a saving proviso is 
added to paragraph 2, are modifications introduced by 
way of waiver of the sovereign's rights. Had they been 
omitted the true question would still have been the same, 
though arising in a more acute form, namely, does this 
exercise of the right of retaliation upon the enemy 
occasion inconvenience or injustice to a neutral, so ex- 
treme as to invalidate it as against him % In principle it 
is not the belligerent who creates an offense and imposes 
a penalty by his own will and then by his own authority 



190 INTERNATIONAL, LAW I DECISIONS AND NOTES. 

empowers and directs the court of prize to enforce it. It 
is the law of nations, in its application to maritime war- 
fare, which at the same time recognizes the right, of 
which the belligerent can avail himself sub modo, and 
makes violation of that right, when so availed of, an 
offense, and is the foundation and authority for the right 
and duty of the court of prize to condemn, if it finds the 
capture justified, unless that right has been reduced by 
statute or otherwise, or that duty has been limited by 
the waiver of his rights on the part of the sovereign of 
the captors. 

It is equally inadmissible to describe such an order in 
council as this as an executive measure of police on the 
part of the Crown for the purpose of preventing an in- 
convenient trade, or as an authority to a court of prize 
to punish neutrals for the enjoyment of their liberties and 
the exercise of their rights. Both descriptions, as is 
the way with descriptions arguendo, beg the question. 
Undoubtedly the right of retaliation exists. It is 
described in the Zamora 79 ; it is decided in the Stigstad, 60 
as it had so often been decided by Sir William Scott over 
a century ago. It would be disastrous for the neutral, 
if this right were a mere executive right not subject to 
review in a prize court ; it would be a denial of the bellig- 
erents ' right, if it could be exercised only subject to a 
paramount and absolute right of neutrals to be free to 
carry on their trade without interference or inconvenience 

Scott's deci This latter contention has already been negatived in the 
Stigstad. 80 The argument in favor of the former, drawn 
from the decisions of Sir William Scott, seems to their 
lordships to be no less unacceptable. With the terms of 

,°f^. rs , i ^ rt coun " the proclamations and orders in council from 1806 to 

cil 1806—1812 

1812 their lordships are not now concerned. They were 
such that the decisions on them in many cases involved 
not merely the use of the term " blockade" but discussion 
of, or at least allusion to, the nature of that right. It 
is, however, in their opinion a mistake to argue, as has 
been argued before them, that in those decisions the right 
to condemn was deemed to arise from the fact that the 
cases were cases of blockade, although the occasion for 
the blockade was the passing of a retaliatory order. In 
their opinion Sir William Scott's doctrine consistently 
was that retaliation is a branch of the rights which the 

n [1916] 2 A. C. 77. « [1919] a. C. 279. 



INTERNATIONAL, LAW I DECISIONS AND NOTES. 191 

law of nations recognizes as belonging to belligerents, and 
that it is as much enforceable by courts of prize as is the 
the right of blockade. They find no warrant or authority 
for holding that it is only enforceable by them when it 
chances to be exercised under the form or the conditions 
of a valid blockade. When once it is established that the 
conduct of the enemy gave occasion for the exercise of 
the right of retaliation, the real question is whether the 
mode in which it has been exercised is such as to be 
invalid by reason of the burden which it imposes on 
neutrals, a question preeminently one of fact and of 
degree. 

The onslaught upon shipping generally which the 
German Government announced and carried out at the 
beginning of 1917 is now matter of history. Proof of its 
formidable character, if proof were needed, is to be found 
in a comparison between the retaliation orders in council 
of 1915 and of 1917, and their lordships take the recitals 
of the latter order as sufficiently establishing the neces- 
sity for further invoking the right of retaliation. They 
address themselves accordingly to what is the real 
question in the present appeal, namely, the character 
and the degree of the danger and inconvenience to „ Dan „ g . e ^* nd fc 

o & ^ convenience to 

which the trade of neutrals was in fact subjected by the neutral trade - 
enforcement of that order. They do not think it neces- 
sary to criticize theoretic applications of the language of 
the order to distant seas, where the enemy had neither * 
trade nor shipping, a criterion which was argued for but 
which they deem inapplicable. Nor have they been 
unmindful of the fact that, to some extent, a retaliatory 
order visits on neutrals the consequences of others' 
wrongdoing, always disputed, though in the present case 
hardly disputable, and that the other belligerent, in his 
turn and also under the name of retaliation, may impose 
upon them fresh restrictions; but it seems to them that 
these disadvantages are inherent in the nature of this 
established right, are unavoidable under a system which 
is a historic growth and not a theoretic model of perfection, 
and are relevant in truth only to the question of degree. 
Accordingly they have taken the facts as they affected 
the trade in which the Leonora was engaged, and they 
have sincerely endeavored, as far as in them lay, to view 
these facts as they would have appeared to fair-minded 
and reasonable neutrals and to dismiss the righteous 
indignation which might well become those who recall 
only the crisis of a desperate and terrible struggle. 



192 INTERNATIONAL LAW : DECISIONS AND NOTES. 

Compliance with the requirements of the order in coun- 
cil would have involved the Leonora in difficulties, partly 
of a commercial and partly of a military character. Her 
voyage, and with it the ordinary expenses of her voyage, 
would have been enlarged, and the loss of time and pos- 
sibly the length of the voyage might have been added to 
by the fact that no port or class of ports of call had been 
appointed for the purpose of the order. Inconvenience 
of this character seems to be inevitable under the cir- 
cumstances. In so far as it is measurable entirely in 
terms of money, the extra expense is such as could be 
passed on to the parties liable to pay freight, and neither 
by itself nor in connection with other and more serious 
matters should this kind of inconvenience be rated high. 
Routing. it is important to observe that the order does not for- 

bid the carriage of the goods in question altogether. The 
neutral vessel may carry them at her peril, and that peril, 
so far as condemnation is concerned, may be averted if 
she calls at an appointed port. The shipowner, no doubt, 
would say that if his ship is to make the call he will never 
be able to ship the cargo, for its chance of escape would 
be but small, and that if he is to get the cargo he must risk 
his ship and undertake to proceed direct to her destina- 
tion. The contention is less formidable than it appears 
to be on the surface. Their lordships know well, and the 
late president with his experience knew incomparably 
• better, with what ingenuity and artifice the origin of a 
cargo and every other damaging circumstance about it 
have been disguised and concealed where the prize of suc- 
cess was high and the parties concerned were unfettered 
by scruples and inspired by no disinterested motives. 
They think that the chance of escape in a British port of 
call must be measured against the enormous economic 
advantage to the enemy of carrying on this export trade 
for the support of his foreign exchange and the benefit of 
his much-needed imports, and they are convinced that 
the chance might well be sufficient to induce the pro- 
moters of the trade both to pay, and indeed to prepay, 
whatever freight the shipowner might require in order to 
cover extra insurance and the costs of a protracted voy- 
age, and to give to the actual shipper such favorable 
terms of purchase, insurance, or otherwise, as would lead 
him to expose his cargo to the risk of detection of its ori- 
gin. They are far from thinking that compliance with 
the order would exclude neutrals from all the advantage 



INTERNATIONAL LAW: DECISIONS AND NOTES. 193 

of the trade. If the voyages were fewer in number, they 
would tend to be more profitable singly, and in any case 
this particular traffic is but a very small part of the em- 
ployment open, and legitimately so, to neutral traders, 
and the risk of its loss need not be regarded as of great 
moment. 

There is also some evidence, though it is not very clear, &*£& munici- 
that Dutch municipal law forbade, under heavy penal- 
ties, that such a deviation as would be required by a call 
at a British port should be made by a Dutch ship which 
had cleared for Sweden. If, however, the order in coun- 
cil is in other respects valid, their lordships fail to see how 
the rights of His Majesty under it can be diminished or 
the authority of an international court can be curtailed 
by local rules, which forbid particular nationals to com- 
ply with the order. If the neutral is inconvenienced b}^ 
such a conflict of duty, the cause lies in the prescriptions 
of his own country's law, and does not involve any inva- 
lidity in the order. 

Further, it is pointed out that, with the exception of by I °other al SiiS 
France, the other allied powers did not find it necessary powers - 
to resort to a similar act of retaliation, and it is contended 
that, upon a comparison with the order of 1915 also, the 
consequences involved in a disregard of the order of 1917 
were of unnecessary severity and were unjustifiable. 
The first point appears to be covered by the rule that on 
a question of policy — and the question whether the time 
and occasion have arisen for resort to a further exercise 
of the right of retaliation is essentially a question of pol- 
icy — a court of prize ought to accept as sufficient proof 
the public declarations of the responsible executive, but 
in any case the special maritime position of His Majesty 
in relation to that of his allies affords abundant ground f or 
refusing to regard a different course pursued by those 
allies as a reason for invalidating the order of 1917. If 
the second point involves, as it seems to imply, the con- 
tention" that a belligerent must retaliate on his enemy, so 
far as neutrals are concerned, only on the terms of com- 
pensating them for inconvenience, if any is sustained, and 
of making it worth their while to comply with an order 
which they do not find to be advantageous to their par- 
ticular interests, it is inconsistent with the whole theory 
on which the right of retaliation is exercised. The right 
of retaliation is a right of the belligerent, not a concession 
by the neutral. It is enjoyed by law and not on suffer- 



194 INTERNATIONAL, LAW: DECISIONS AND NOTES. 

ance; and doubly so when, as in the present case, the 
outrageous conduct of the enemy might have been treated 
as acts of war by all mankind. 

Accordingly the most material question in this case is 
the degree of risk to which the deviation required would 
subject a neutral vessel which sought to comply with the 
order. It is said, and with truth, that the German plan 
was by mine and by submarine to deny the North Sea to 
trade; that the danger, prospective and actual, which 
that plan involved must be deemed to have been real and 
great, or else the justification of the order itself would 
fail; and that the deviation, which the Leonora must 
have undertaken, would have involved crossing and 
recrossing the area of peril. 
attan 8 ™ 6 ° f retal Their lordships recall and apply what was said in the 
Stigstad, that in estimating the burden of the retaliation 
account must be taken of the gravity of the original 
offense which provoked it, and that it is material to con- 
sider not only the burden which the neutral is called 
upon to bear, but the peril from which, at the price of 
that burden, it may be expected that belligerent retalia- 
tion will deliver him. It may be — let us pray that it 
may be so — that an order of this severity may never be 
needed, and therefore may never be justified again, for 
the right of retaliation is one to be sparingly exercised 
and to be strictly reviewed. Still the facts must be 
faced. Can there be a doubt that the original provoca- 
tion here was as grave as any recorded in history; that 
it menaced and outraged neutrals as well as belligerents; 
and that neutrals had no escape from the peril, except 
by the successful and stringent employment of unusual 
measures, or by an inglorious assent to the enslavement 
of their trade ? Their lordships have none. 

On the evidence of attacks on vessels of all kinds and 
flags, hospital ships not excepted, which this record 
contains, it is plain that measures of retaliation and re- 
pression would be fully justified in the interest of the 
common good, even at the cost of very considerable risk 
and inconvenience to neutrals in particular cases. Such 
a conclusion having been established, their lordships 
think that the burden of proof shifts, and that it was for 
the appellants to show, if they desired, that the risk and 
inconvenience were in fact excessive, for the matter 
being one of degree it is not reasonable to require that 
the Crown, having proved so much affirmatively, should 



INTERNATIONAL, LAW: DECISIONS AND NOTES. 195 

further proceed to prove a negative and to show that the 
risk and inconvenience in any particular class of cases 
were not excessive. Much is made in the appellants' 
evidence of the fact that calling at a British port would 
have taken the Leonora across a German mine field, but 
it is very noticeable that throughout the case the very 
numerous instances of losses by German action are cases 
of losses by the action of submarines and not by mines. 
The appellants filed a series of affidavits, stating in iden- 
tical terms that in proceeding to a British port of call 
vessels would incur very great risk of attack by sub- 
marines, especially if unaccompanied by an armed 
escort. Of the possibility of obtaining an armed escort 
or other similar protection they say nothing, apparently 
because they never had any intention of complying with 
the order in council, and therefore were not concerned to 
ascertain how much danger or how little their compliance 
would really involve. Proof of the amount of danger 
involved in crossing the mine field in itself is singularly 
lacking, but the fact is plain that after a voyage of no 
extraordinary character the Leonora did reach Harwich 
in safety. 

Under these circumstances their lordships see no suffi- Decision, 
cient reason why, on a question of fact, as this question 
is, they should differ from the considered conclusion of 
the president. He was satisfied that the order in council 
did not involve greater hazard or prejudice to the neutral 
trade in question than was commensurate with the 
gravity of the enemy outrages and the common need for 
their repression, and their lordships are not minded to 
disturb his finding. The appeals accordingly fail. Their 
lordships will humbly advise His Majesty that they 
should be dismissed with costs. 



THE "DtlSSELDORF." 

[Privy Council.] 
ON APPEAL FROM THE PRIZE COURT, ENGLAND. 

July 29, 1920. 

[1920] A. C 1034. 

Appeal from that portion of a decree of the president 
of the admiralty division (in prize), 81 dated May 12, 
1919, which has disallowed a claim in respect of costs and 

»» [1919] P. 245. 



196 INTERNATIONAL, LAW : DECISIONS AND NOTES. 

damages incurred by reason of the capture and detention 
of the German steamship Dusseldorf and her cargo. The 
claim and the appeal were on behalf of the Norwegian 
Government, and were made under the circumstances 
appearing in the judgment of their lordships. 

tiie t Sse ment ° f Jul y 29 - Tfte judgment of their lordships was deliv- 
ered by Lord Sumner. In this case the Dusseldorf, a 
German ship, was making her way from Narvik, with a 
cargo of iron ore, down the Norwegian coast toward the 
entrance to the Baltic, and so to Emden. Her object 
was to keep within Norwegian territorial waters, so as to 
baffle capture by British men-of-war. She was taken by 
H. M. S. Tay and Tyne at a point off Buholmen and Gris- 
holmen, which was, as it turned out, a little (say, 200 
yards) within the territorial limits. The learned presi- 
dent, Lord Sterndale, found that the commander of the 
Tay and Tyne had no intention of violating Norwegian 
neutrality, but that, by an error of judgment, which their 
lordships consider to have been very pardonable, he con- 
ceived that the 3-mile line should be drawn a little 
farther to the east than its true position. It is plain that 
the German shipowners had a narrow and somewhat 
lucky escape, and that the sovereignty of Norway suffered 
the minimum of prejudice from this unintentional vio- 
lation. 

The present claim was made on behalf of His Majesty 
the King of Norway by the appellant, Mr. Waldemar 
Eckell, the Royal Norwegian consul general in London. 
His claim was, first, for delivery up of the Dusseldorf and 
•her cargo or its proceeds; secondly, for the cost of remov- 
ing her to Norway; thirdly, for costs and fees payable to 
the marshal of the prize court or otherwise upon her 
delivery; and fourthly, the vessel having been regularly 
requisitioned by His Majesty's Government pending the 
hearing before the prize court, for an account of profits 
made by the Crown from the use of the ship, or alterna- 
tively, for payment of a reasonable sum for her use. 

th?v£sei hip ° f It ma y De wen * t° consider in the first instance how this 
matter stands, apart from authority. In the vessel her- 
self and her cargo, on their own account, the Norwegian 
Government have neither right, title, nor interest, nor 
had they ever even possession. The German owners 
have all the right and interest, and, in the absence of any 
treaty or convention dealing with the case, they can 
neither come before the court directly as claimants nor 



INTERNATIONAL LAW: DECISIONS AND NOTES. 197 

can they be allowed to do indirectly what is directly 
incompetent. Indeed, as against them, the capture is 
good, being the capture of enemy property; and the 
" claim of territory," as it is called, is one which is avail- 
able to the territorial sovereign only, and not to the pri- 
vate shipowner. These considerations, apart from the 
validity and effect of orders, regularly made, permitting 
the admiralty to requisition the vessel, at once dispose 
of the fourth claim, namely, that for profits or freight, or 
hire in respect of the benefit which the British Govern- 
ment obtained from requisitioning the vessel under the 
prize rules. If the appellant recovered any such sum, it 
would be held simply in the interest of the enemy owners. 
No claim has been made, nor has any evidence been given, 
on the footing that the Norwegian Government have come 
under any pecuniary liability to the owners of the Diissel- 
dorf, nor is there any suggestion that the seizure involved 
them in any outlay or pecuniary disadvantage outside of 
these proceedings. No one would wish to make light of 
a violation of territorial sovereignty, but in itself this is . violation of tw- 

° J 7 ritonal sovereign - 

a matter arising between sovereigns and, apart from the ty- 
peculiar position of captors who are bound to bring their 
alleged prize before the court, it would in itself be non- 
justiciable, for in effect the prize court would be called 
on to pronounce a decree, founded on the conduct of his 
offices, against the sovereign in virtue of whose commis- 
sion it is authorized to act, and to evaluate imponderable 
wrongs, which lie outside the category of those with which 
it is wont to deal. 

A court of prize is not, as such, a disciplinary tribunal 
for officers in His Majesty's Navy, charged with the cor- 
rection of errors committed by them while discharging 
their duties. Any complaint against such officers which 
the Government of Norway might have, and any claim 
for amends for an invasion of the territorial sovereignty 
of Norway, would fitly be preferred through diplomatic 
channels to His Majesty's Government for examination 
and redress. 

The facts that the court found itself regularly in pos- Requisition. 
session of the Dusseldorf, and subsequently made a 
regular order giving leave to requisition her, are at 
once the foundation of the jurisdiction and the occasion 
of the Norwegian Government's appearance. It is a 
fortunate circumstance that the ancient practice, by 
which courts of prize entertain litigious claims of this 



198 



INTERNATIONAL. LAW I DECISIONS AND NOTES. 



Detention. 



Damages. 



Privateers. 



kind made on behalf of neutral powers, led long ago to 
the submission of one class of international questions, at 
any rate, to a judicial determination instead of to the 
arbitrament of arms, and so provided for a solution of 
vexed questions at once peaceful, honorable, and friendly. 
It may, therefore, well be that the rules which apply to 
capture on the high seas are by no means closely applica- 
ble to capture in neutral territorial waters. On the 
high seas, if there is reasonable ground for detention, the 
risk of it is one which even a neutral must run, and the 
appropriate remedy is the release of the ship in this 
country. In neutral waters, on the other hand, no 
capture should be made at all, and rules applicable to 
the high seas are not in pari materia. Simple release of 
the ship in this country to the claimant sovereign may 
be an inadequate redress. The fact that the court has 
duly received into its charge and jurisdiction a ship which 
ought not to have been seized at all, leads to the con- 
clusion that the true claim of the appellant is for a 
restitutio in integrum, so far as the Government of 
Norway is concerned; but that, naturally as their lord- 
ships would incline to a treatment of it as liberal and 
ungrudging as possible, they are still bound to act 
judicially and to follow legal principles and the decisions 
already given in prize cases. 

The authorities prior in date to the recent war are 
few in number and are somewhat indeterminate. In 
cases between captors and private owners the jurisdic- 
tion to award damages and costs against the former on 
the ground of their misconduct, or to refuse to give 
them in favor of the latter where their conduct had been 
suspicious or irregular, was long ago well recognized, 
but the language used in stating the grounds of it was not 
uniform. Sometimes Sir William Scott spoke of such 
decrees as giving compensation to the suffering owners, 
whether the misconduct of the captors was intentional 
or not ; sometimes they were made avowedly as a punish- 
ment to deter others, generally privateers, from the 
repetition of offenses. In the Ostsee 82 the Privy Council 
laid it down that the former is the better view, though, 
if so, it is not easy to appreciate the relevancy of inquiring 
whether the captors acted under a reasonable mistake. 
From such a jurisdiction little guidance is to be obtained 
in the present case. Of actual " claims of territory" 



82 9 Moo. P. C 150. 



INTERNATIONAL, LAW I DECISIONS AND NOTES. 19 

but few are reported. There are three decisions of 
Sir William Scott — The Twee Gebroeders 83 the Vrow 
Anna Catharina, 8 * and the Anna w — and during the 
present war, in addition to the present case, there have 
been the Lokken (July 26, 1918), 86 the Valeria? 1 and tne 
PeUworm (Apr. 21, 1920) . 88 No point has been argued 
in the present case as to the effect of the provisions of 
the treaty of Versailles, such as was discussed in the 
Pellworm. 88 

In the Vrow Anna Catharina 89 Sir William Scott 
observes: "The sanctity of a claim of territory is un- 
doubtedly very high. * * * When the fact is estab- 
lished, it overrules every other consideration. The 
capture is done away; the property must be restored, 
notwithstanding that it may actually belong to the 
enemy; and if the captor should appear to have erred 
willfully, and not merely through ignorance, he would 
be subject to further punishment/ ' 

In the Twee Gebroeders 83 the same great authority 
condemned the conduct of the captors as having been 
in violation of a neutral sovereign's rights ; but held that, 
as they had not intended to commit any wrong, and as 
it was not easy for them to have ascertained where the 
neutral boundary ran, they ought not to be held liable 
in damages and costs. On the other hand, in the Anna 85 
which was the case of a privateer and not of a regular 
King's ship, there had been deliberate abuse of the terri- 
torial waters of the United States, and in a claim of 
territory restitution of the captured vessel was accom- 
panied with a decree lor payment of damages and costs. 
It does not appear what the measure of these damages 
was, or whether the Government of the United States 
had been put to actual expense by the conduct of the 
privateer. 

In the present case there can be no doubt that the ap- 
pellant was entitled to have the Dusseldorf (and the pro- 
ceeds of the cargo) released to him on behalf of His 
Majesty the King of Norway. Had the naval officer's 
error been brought to the notice of the British Govern- 

•» 3 C. Rob. 162. si 5 c. Rob. 15. «5C. Rob. 373. m Unreported. 

« [1920] P. 81. » [1920] P. 347. w 5 C. Rob. 15, 16. 



1 ■ 



200 INTERNATIONAL, LAW : DECISIONS AND NOTES. 

ment forthwith, before the Diisseldorf was brought before 
the prize court, her prompt return to Norway on behalf 
of the Crown, with suitable expressions of regret and re- 
gard, would, it can hardly be doubted, have been an 
ample satisfaction to the King of Norway for the uninten- 
tional wrong done. In the event, which has happened, 
of the ship's being placed in the prize court, the question 
now is what further relief, if any, should be accorded to 
the claimant. 

The learned president, Lord Sterndale, before whom 
this question was hardly sufficiently argued, decided, on 
the authority of the Twee Gebroeders ( 90 ) , that there was 
oiit?<Sofneutrli- no g roun d f° r decreeing such costs and damages to the 
ity - claimant as it has been the practice to grant where the 

violation of neutrality has been high-handed, negligent, 
or designed. If this were the sole ground on which the 
matter could be put, there can be no doubt that his de- 
cision ought to be affirmed. 

It is, however, now on fuller argument contended that, 
as the right of the Norwegian Government is at least for 
restoration, this involves either the physical redelivery of 
the Diisseldorf \n Norwegian waters, which is not really 
asked for, or the payment of the costs of her return voy- 
age. The ground is that, if this be not so, the Norwegian 
Government must either pay this expense, and so suffer 
pecuniarily for the error of a British officer, or leave the 
German owners to navigate the vessel for themselves. 
In any case, as between the Norwegian Government and 
persons whose property at the time of the seizure was 
within the territorial jurisdiction of the King of Norway 
and sub protectione regis, this would place his Govern- 
ment in the invidious position of leaving them without 
any redress at all for a seizure which occurred notwith- 
standing their claim to the protection of the Norwegain 
Crown. There is a further matter for consideration, 
which is this. If the hearing had been completed and 
the release had been decreed, flagrante bello, as might 
have been the case, and if the Norwegian Government, to 
avoid expense and responsibility for which they would 
receive no recompense, had forthwith handed the Diissel- 
dorf 'over to her owners before she had reached the security 
of neutral waters, she might have been captured again. 
In that case the Government of His Majesty the King of 
Norway might have been exposed to the observation that 

w 3 C Rob. 162. 



INTERNATIONAL, LAW : DECISIONS AND NOTES. 201 

their proceedings resulted merely in the vindication of 
the public sovereignty of the Kindom of Norway without 
advantage or redress to the private rights which had suf- 
fered interference while within the limits of that realm. 
Their lordships think that this argument is well founded, 
and that, alike from the necessity of performing and pay- 
ing for the voyage to Norway at their own expense, and 
from the possibility of being exposed to any such reflec- 
tion, the Norwegian Government ought to be protected. 
They are therefore entitled to costs of the voyage to Nor- 
way paid and borne by them. 

The claim for repayment of the marshal's fees and other pa ^™ t jTmar- 
similar sums rests on a different footing. Here the impor- ?hal ' s fees - 
tant points are that the ship came regularly into the 
custody of the officers of the court and, but for the 
requisitioning, which also was a regular proceeding, 
would have remained throughout in its charge, and so 
would have had the benefit of care and protection, which 
would inurej to enhance the vessel's value or avert 
depreciation. Even in the hands of the Admiralty, she 
has necessarily had the benefit of a certain amount of 
upkeep in the ordinary course of user, and there is no 
suggestion of ill-usage, neglect, or willful deterioration. 
Although, as now appears, the captors had no legal right 
to possession, they were in fact in possession in all good 
faith, and, in placing the ship and cargo in the custody 
of the marshal, they acted in discharge of an obligation 
of a very binding character, from the observance of which 
it would be most inexpedient in any way to deter persons 
in their position. Further, in a matter of costs it is par- 
ticularly necessary to observe settled rules of practice, for 
costs are always somewhat artificial matters and depend- 
ent on the practice of the court. It has been laid down in 
the Franciska 91 by their lordships' board that such costs 
as those now in question are properly charges on the prop- 
erty itself, because it is for the benefit of whom it may 
concern that the ship and cargo should be placed in the 
care and custody of the marshal of the court. This deci- 
sion is, of course, binding upon their lordships, and they 
therefore think that these charges form a proper charge 
against the ship and fall to be discharged by those to 
whom she is delivered up, nor is it necessary or appro- 
priate to inquire under what form or by what process, if 

M 10 Moo. P. C. 73. 



202 INTERNATIONAL LAW I DECISIONS AND NOTES. 

any, they may be recovered over from the German 
owners. 

It is possible that some part or the whole of the costs 
of transferring the Dusseldorf to neutral waters has been 
paid, or contracted to be paid, by her owners, and so has 
not fallen, or, if they perform their contract, will not 
ultimately fall, on the Government of Norway. In such 
a case the appellant will not recover them in these pro- 
ceedings. 
Decisl00 * In the result the appeal will be allowed with costs, and 

the decree of the president will be varied by directing 
that the appellant is entitled to be paid such expenses of 
removing the Dusseldorf from British waters to Nor- 
wegian or other neutral waters as may have fallen, or will 
ultimately fall, on the Government of Norway, but other- 
wise the decision of the president will be affirmed. The 
case will be remitted to the prize cqurt to make the neces- 
sary formal decree and to direct a reference to the regis- 
trar. Their lordships will humbly advise His Majesty to 
this effect. 



INDEX. 



Page. 

Abo, case of the 15 

Alexander, case of the 6 

Allied Powers, application of doctrine of continuous voyage 100 

American Journal of International Law, editorial in 105 

Angary, right of 139 

Anna, case of the 199 

Anna Catherine, case of the 178 

Ariel, case of the 13, 15 

Armed forces 102 

Armour & Co., claims of 62, 107 

Asylum for prize 156-160 

Austria, prize regulations 48 

Bail, of Norwegian vessel Ill 

Baird, claims of 88, 108 

Baltica, case of the 27 

Bases of supply, German ports as 93 

Benito Estanger, case of the 49 

Bermuda, case of the 94, 97, 104, 169 

Berlin, case of the 20 

Biddell v. E. Clemens Horst, case of 15 

Blockade: 

Of Tsingtau 20 

Withdrawal from place under 23 

Brodr Levy, claims of 78, 107 

Brown v. United States, case of 19 

Bunchs fed., claims of 85, 108 

Capture: 

Details of 153 

For carriage of contraband 164 

In neutral territorial waters 110, 111, 112, 196 

Liability of cargo on British ship 13 

No direct evidence of 3 

Of fishing vessel 1, 58 

Of private property on land 17 

Test of right to 13 

Cargo: 

Contract of sale 11 

Enemy ownership 91 

Liability to capture in British ship 10, 16 

Neutral property 11 

Property rights in, in time of peace 13 

Transactions regarding completed before war 12, 14 

Christensen, claim of 77, 108 

59650—24 14 203 



204 INDEX. 

Page. 
Christian Loehr, claims of 86, 108 

Chase, C. J., opinion in the Bermuda 169 

Claims: 

Armour & Co 62, 107 

Baird 88, 108 

Brodr Levy 78, 107 

Bunchs Fed 85, 108 

By foreign sovereign 197 

Christensen 77, 108 

Christian Loehr 86, 108 

Cudahy & Co 72, 108 

Erik Valeur 85, 108 

For costs 201 

For damages 178 

For freight 177 

Frigast 84, 108 

Guarantee Trust Co < 91 

Hammond & Co 67, 107 

Hansen, J. 82, 107 

Henriques 83, 108 

Korsor Margarin Fabrik 84, 108 

Marcus & Co 90, 108 

Pay & Co 75, 107 

Pedersen 83, 108 

Peter Buch & Co 81, 107 

Provision Import Co 76, 108 

Segelke&Co 82,108 

Sulzberger & Sons Co 69,107 

Swift & Co 67,107 

Thoegersen 77, 108 

Ullman&Co 86,108 

Vilhelm Elwarth 79, 107 

Zoydner 83, 108 

Cocoanut oil, as conditional contraband 173 

Compensation, for goods not subject to seizure 33 

Condemnation of vessel for carriage of contraband: 

Ancient rule 167 

Under British order in council of February 16, 1917 185 

When important part of cargo is contraband 170 

When more than half the cargo is contraband 165 

When one-quarter of cargo is contraband 170 

When owner also owns cargo 168 

When owner is privy to carriage 168-170 

When sailing under false papers 168 

When three-fourths of cargo is contraband 170 

Conqueror, case of the 18 

Consignment "to order" 98, 101, 106 

Contraband : 
Absolute — ■ 

Application of continuous voyage to 95 

Rubber as 51, 54 

Article XIII, Prussian-United States treaty, 1799 122 



INDEX. 205 

Contraband — Continued. 

Conditional — 1'age. 

Application of continuous voyage to 95, 100. 101, 176 

Coconut oil as 173 

Condemnation of 166 

Consignment "to order" 98 

Foodstuffs as 165 

Hides as 51, 54 

Proclamations regarding 51 , 54 

Proof of destination of 103 

Rubber as 54 

Seizure of 51 

Tinned beef as 65 

Ultimate destination of 102. 103, 106 

Penalty for carriage of 164, 165, 167. 168 

Proclamations of 51 

Continuous voyage: 

Application by Allied Powers 100 

Application by Great Britain 94 

Application by United States 94. 96, 101 

Application to breach of blockade 94 

Application to carriage of contraband 94 

Application to conditional contraband 100, 101 

Application to raw materials for manufacture 176 

Application to unlawful trading 94 

Provisions of declaration of London 95 

View of Sir Samuel Evans regarding 96 

Copenhagen: 

Effect of war on imports of 63 

Trade with Germany 62, 93 

Cousine Marianne, case of the 15 

Cudahy & Co. , claims of 72, 108 

Damages: 

For detention under orders in council 178 

For neutral property sunk on enemy vessel 34, 118 

Liability of Crown for 147, 149 

Dana, notes to Wheaton 17 

Declaration of London: 

Application by France 39, 45, 48. 110 

Application of article 64 38 

Article 56 — 

Application of 38 

English views concerning 47 

Interpretation of drafting committee 47 

Interpretation of United States delegates 47 

Opinion of Cone Johnson regarding 46 

Terms 45 

Condemnation for carriage of contraband 165 

Continuous voyage 94. 95. 100 

Destruction of neutral goods on enemy vessels 3 J . 1 19 

"Good faith " 47 

" Infection " 107 

Not ratified 45 



206 INDEX. 

Declaration of London — Continued. Page. 

Presumption of enemy character 116 

Provisions of article 40 part of law of nations 165 

Rendered applicable by British orders in council 48, 51, 167 

Report on article 42 107 

Report on article 64 119 

Transfer of vessel in time of war 29, 45 

Unneutral service ' Ill, 125, 126 

Validity of 167 

Declaration of Paris: 

Effect on liability of enemy goods on British ships 19 

Enemy ship-free goods 34, 35 

Free ship-free goods 35. 123 

Modified right of capture only in favor of neutrals 19 

Nonaccession of the United States 19 

Denmark: 

Effects of war on imports of 59 

Extent of territorial waters of 112 

Trade with 52 

Destination, of conditional contraband 166 

Destruction — 

Of enemy vessels 30, 116, 117 

Of neutral goods on enemy vessels 31, 36 

Of neutral vessels 31 

Dolphin, case of the 102 

Droits of admiralty 18 

Droits of the Crown 18 

Dupont v. British South Africa Co. , case of 15 

Egypt, prize case of 19 

Emulous, cargo ex. See Brown v. United States. 

Enemy character: 

Presumption of 116 

Enemy goods: 

Liability to capture 13, 16-19 

Sale of 14 

Sent by parcel post 23 

Enemy origin 185, 186 

"Enemy ship, enemy goods" 119-121 

"Enemy ship, free goods " 120 

Enemy vessel : 

Destruction of 30. 116, 117 

Neutralization of 22 

Not immune because carrying refugees 22 

Erik Valeur, claims of 85, 108 

Evans, Sir Samuel, judgments of: 

Berlin 20 

Bonna 173 

Hakan 164 

Kim et al 50 

Miramichi 10 

Simla 24 

Southfield 25 

Stigstad 177 



INDEX. 207 

Evidence: Page. 

Absence of direct legal 3 

Difficulty in laying down rules of 4 

Prize court not confined to direct legal 4 

Technicalities of rules of in courts of law 4 

With respect to blockade 4 

With respect to questions of prize 4 

Finlay, Sir Robert, statement in the Kim 64. 66 

Fishing vessels: 

Exemption from capture 5, 8, 9, 67, 120 

History of exemption 5 

Foodstuffs, as conditional contraband 165 

Fox, case of the 133, 179 

France: 

Application of declaration of London 45, 48, 110 

Instructions of Minister of Marine 112 

Prize cases 37,48,108,115,124 

Views regarding destruction of neutral goods 31 

Views regarding liability of vessel carrying contraband 170 

Franciska, case of the 4, 201 

"Free ship, free goods " 119, 120, 121, 123 

Freight, claims for 177 

Frigast, claim of 84, 108 

Germany: 

Bound by United States-Prussian treaty 119 

Copenhagen as market for 62 

No distinction between civil and military population 102 

Ports of as bases of supply 93 

Prize cases 30, 106, 117, 150 

Prize code 32, 47, 123 

Right to claim under Hague Convention 7 

Trade with Copenhagen 52, 93 

View regarding compensation for destruction of neutral goods 120 

Views of delegates of, on declaration of London 47 

View regarding liability for carriage of contraband 170 

Glass v. The Betsy, case of 162 

Gompertz, Mr. Justice, decision in the Hanametal 22 

"Good faith" 47 

Grain, J., opinion in the Maria 20 

Gray, J., judgment in the Paquete Habana and the Lola 5 

Great Britain : 

Application of declaration of London 48 

Application of doctrine of continuous voyage 94 

Note to United States 102 

Orders in council 51, 99, 100, 101 

Prize cases 2, 9, 23, 24, 50, 126, 164. 172, 176, 184, 195 

Prize court rules 127, 147 

Proclamations regarding contraband 51, 54 

Views of delegates on Declaration of London 47 

Views regarding destruction of neutral goods 31 

Views regarding liability of vessel carrying contraband 167 

Guarantee Trust Co. , claims of 91 

Gum, as description for rubber 87, 89 



208 INDEX. 

Hague Conventions: Page. 

Capture in neutral jurisdiction Ill 

Compensation for damage to neutral property 35 

Exemption of coast fishing vessels from capture 7 

Immunity of postal correspondence 24 

Neutral asylum for prize 160 

Philanthropic mission 21 

Report of the committee 21 

Right of Germany to claim under 7 

Scientific mission 152 

Not applicable to Turkey 20 

Violation of 51 

Hall, doctrine of immunity of fishing vessels 8 

Hammond & Co. , claim of 67, 107 

Hanametal, case of the 22 

Hanson, J. O., claim of 82, 107 

Headlam, J. W., "History of the Twelve Days" 30 

Henriques, claim of 83, 108 

Hides, as conditional contraband 50, 54 

Holland, view regarding liability for carrying contraband 17fr 

Hongkong, prize case 20 

Ida, case of the 15 

Immunity of fishing vessels 20 

Infection, doctrine of 101 

International law, administered by prize courts 130- 

Invincible, case of the 13fr 

Italy: 

Views regarding liability for carriage of contraband 170 

Views regarding transfer in transitu 48 

Japan: 

Prize cases 6 

Prize regulations 6 

Jemmy, case of the 49 

Johnson, Cone, opinion of, regarding transfer of vessel 38, 46, 48 

Jonge Margaretha, case of the 93, 98, 166 

Juno, case of the 177 

Kingsdown, Lord, opinion in the Baltica. 27 

Korsor Margarin Fabrik, claims of 84, 108 

Lard, as a foodstuff 92 

Liability of capture, of ships carrying refugees 22* 

Lola, case of the 5 

Lushington. Doctor, statement as to evidence 4 

Mail steamer, capture of 23 

Marcus & Co. , claims of 90, 108 

Margarinefabrik Dania, claims of 85, 108 

Maria, case of the 106 

Mashona, case of the 19 

Merchant vessel 151 

Michael, case of the 6 

Mirabita v. Ottoman Bank, case of 15 

Morris & Co., claims of 55, 107 

Navire de Commerce. See Merchant vessel. 

Neutralitet, case of the 167 



INDEX. 209 

Neutrality: Paga. 

Armed, of 1780 120 

Breach of 22 

Laws of United States 158 

Of nonbelligerent ship 22 

Practice of United States regarding 158, 159 

Violation of 164 

Neutralization, of enemy ship 22 

Neutral merchandise on enemy vessel: 

Declaration of Paris regarding 34 

Destruction of 31, 34 

Liability to seizure 120 

Neutrals: 

Belligerent restrictions of trade of 191, 192 

Prohibition of exportation by 60 

Rights and duties of Ill 

Neutral trade, dangers to 51 

Neutral vessels: 

Condemnation for carriage of contraband 165 

Destruction of 31 

Neutral territorial waters: 

Capture in 110-112, 196 

Extent of 112 

Noncombatants, withdrawal from blockaded place 23 

Ogg v. Shuter, case of 15 

Order in council : 

Binding effect on prize court 100, 128, 135, 167, 179, 180 

Denning droits of Admiralty 18 

Rendering applicable provisions of declaration London 51, 167 

Reprisals 185 

Validity of 179 

Ostsee, case of the 198 

Outbreak of war: 

Effect on right to capture 25 

Intervention of Great Britain 30 

Ownership of goods, consigned c. i. f 91 

Packet de Bilbao, case of the 13 

Paquete Habana, case of the 5 

Parcel post: 

Not protected by Hague Convention 24 

Seizure in prize 24 

Status of goods sent by 23 

Parker of Waddington, Lord, judgments of: 

Hakan, the 165 

Zamora, the 126 

Pay & Co., claims of 75, 107 

Pearl, case of the 102 

Pedersen, claim of. 83, 108 

Peter Buch & Co., claim of 81, 107 

Peterhoff, case of the 94, 97, 102 

Philanthrophic mission: 

Construction of term 22 

Immunity of vessels employed on 22 

Housing of destitute refugees as 21 

Postal correspondence, immune by Hague Convention 24 



210 INDEX. 

Page. 
Preemption 144 

Prize: 

Asylum in neutral port 156-160 

Bringing in by steamship 3 

Seizure in port 10 

Prize cases: 

Egyptain 19 

English 2, 9, 20, 23, 24, 50, 126, 164, 172, 176, 184, 195 

French 37, 108, 115, 124 

German 30, 106, 117, 150 

Japanese 6 

United States 153, 169 

Prize code: 

Authority of 33 

Transfer of vessel in time of war 48 

Prize court: 

Administers international law 130, 133, 134 

Effect of order in council upon 8, 100, 128, 133, 167, 180 

Inherent power of sale 137 

Jurisdiction of disregard of retaliatory order 189 

Not municipal court 4 

Rules of evidence 4, 73 

Prize court rules 127, 128, 147 

Prize rules 47, 48 

Property, private: 

Immunity from capture on land 17 

Transfer in time of peace 14 

Provision Import Co. , claim of 76, 108 

Prussia, treaties with United States: 

Binds German Empire 119 

Difference in English and French text 121 

" Free ship, free goods'-' 121 

Interpreted by Jefferson 120 

Provision regarding asylum for prize 158, 161 

Provision regarding contraband 123 

Provision regarding requisition 122 

Rebeckah, case of the 18 

Rees-Davies, opinion in the Paklat 21 

Renault, report on declaration of London 107 

Reprisals. See also Retaliation. 

Orders in council 1806-1812 182 

Orders in council February 16, 1917 184 

Principle of 179 

Stowell's decisions regarding 183 

Validity of order in council directing 179, 180, 187, 191 

Requisition: 

British prize court rules regarding 127 

Liability of foreign property to 138 

Of contraband 122 

Of goods in possession of prize court 127 

Of vessel in possession of prize court 197 

Practice of United States regarding 141, 142 

Provision in United States-Prussian treaties for 122 

Right of Crown to 137, 144-146 



INDEX. 211 

Retaliation. See also Reprisal. Page. 

Effect on prize court of order of 179-181 

Existence of right of 190 

Justifiability of disregard of measure of 2, 189 

Justification of 180, 194 

Orders in council, 1806-1812 182, 190 

Validity of order of 179 

Right of capture, not destroyed by declaration of Paris 19 

Ringende Jacob, case of the 168 

Rosalie and Betty, case of the 73 

Rubber: 

As absolute contraband 51, 54 

As conditional contraband 54 

Described as "gum" 87, 89 

Russia, prize regulations 48 

Ryan v. Ridley, case of 15 

Sale, power of prize court 137 

Sally, case of the 13 

Santissima Trinidad, case of the 162 

Scandinavia, prohibition of exportation by 60, 71, 86 

School ship 151 

Scientific Mission, application to school ship 152 

Scott, Sir William. See Stowell, Lord. 

Segelcke & Co., claim of 82, 108 

Seizure in port, same as capture on land 18 

Springbok, case of the 94, 97 

Stephen Hart, case of the 74, 94 

Stern & Co. , claim of 55 

Srerndale, Lord, decision in the Dueeeldorf 200 

Story, Mr. Justice, opinions: 

Invincible 130 

Santissima Trinidad 162 

Transfer in transitu , 26 

Stowell, Lord, opinions: 

Fox 133 

Neutralitet 168 

Retaliatory orders in council 183 

Ringende Jacob 168 

Twee Gebroeders 199 

Vrow Anna Catharina 199 

Vrow Margaretha 26 

Sulzberger & Sons Co., claims of 69 107 

Sumner, Lord, judgments: 

Diisseldorf 196 

Leanora 185 

Stigstad 277 

Swift & Co., claim of 67 107 

Territorial waters, extent of 112 

Thoegersen, claim of 77 10& 

Tinned beef, as contraband 65> 

Transfer of goods in transitu: 

Validity in time of peace 25 26 27 29 

When war intervenes m 25-27 

59650— -24 15 



212 INDEX. 

Transfer of vessel during war: Page. 

Austrian prize rules 48 

Decision of Italian Prize Court 48 

Declaration of London 29 

Employment in original trade 45 

Evasion of consequences of enemy character 45 

Finality of sale 40 

German Prize Code 48 

"Good faith" 47 

Interpretation of declaration London 47 

Russian prize rules 48 

Views of Cone Johnson 48 

Treaties 119-123, 158, 161 

Tsingtau, blockade of 21 

Turkey, Hague Conventions not ratified by 20 

Twee Gebroeders, case of the 199 

Ullman & Co., claims of 86, 108 

Ultimate destination: 

Editorial on 106 

Of conditional contraband 102, 106 

Proof of 103, 104 

Test of 97 

United States: 

Application of continuous voyage 94, 96, 100 

Desire for immunity of private property at sea 19 

Neutrality laws 158 

Nonadhesion to declaration of Paris 19, 123 

Note of British Foreign Secretary to 102 

Opinion of Senator Johnson on declaration of London 46 

Prize cases 153, 169 

Treaties (see also Prussia) 119-123, 158, 161 

Views of delegates to London Naval Conference 47 

View regarding liability for carriage of contraband 169 

Unneutral service 108, 111, 124-126 

Vilhelm Elwarth, claim of 79, 107 

Violation neutral territorial waters 197 

Visit and search in port 125, 127, 146, 186, 187 

Vro w Anna Catharina, case of the 199 

Vrow Margaretha, case of the 15, 26 

Wait v. Baker, case of 15 

Westlake, rule for exemption of coast fishing vessels 8 

Wheaton, view on liability of enemy property at sea 16 

William, case of the 97, 104 

World War: 

Belligerent disregard of neutral rights 2 

Effect on Danish imports 53 

Prize cases 1 

Zamora, case of the 100, 179 

•Zoydner, claims of 83, 108 

- 

o